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[2012] ZASCA 171
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National Director of Public Prosecutions v van Staden and Others (730/2011) [2012] ZASCA 171; 2013 (1) SACR 531 (SCA) (28 November 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 730/2011
In the matter between:
National Director of
Public Prosecutions
................................................
APPELLANT
and
Johannes Erasmus van
Staden and 11 Others
.................................
RESPONDENTS
Neutral Citation:
NDPP
v Van Staden & others
(730/2011)
[2012]
ZASCA 171
(28 November 2012)
Coram:
Lewis,
Malan, Wallis, Pillay JJA and Mbha AJA
Heard:
9
November 2012
Delivered:
28 November 2012
Summary:
Application for confirmation of a provisional restraint order granted
in terms of
s 26(1)
of the
Prevention of Organized Crime Act 121 of
1998
refused by high court on ground that NDPP had not acted in good
faith when it sought the order: decision reversed on appeal: no
ground for finding bad faith and no reason for refusing confirmation.
___________________________________________________________________
ORDER
On appeal from:
Western Cape High Court, Cape Town (Blignault J sitting as court
of first instance):
1 The appeal is upheld
with costs including those of senior counsel.
2 The order of the high
court is set aside and replaced with the following order:
‘
The
provisional restraint order granted on 12 December 2008 is confirmed.
The respondent is ordered to pay the costs of the application
including those of senior counsel.’
JUDGMENT
LEWIS JA
(Malan,
Wallis, Pillay JJA and Mbha AJA concurring)
[1] The appellant, the
National Director of Public Prosecutions (NDPP), brought an ex parte
application, in camera, in the Western
Cape High Court (before
Traverso DJP) for a restraint order in terms of
s 26(1)
of the
Prevention of Organized Crime Act 121 of 1998
, the effect of which
would be to restrain the respondents from dealing with property to
which the order related pending a criminal
trial for fraud
perpetrated against the South African Revenue Service (SARS). The
fraud charges were in respect of the provision
to SARS of fraudulent
VAT returns. The respondents were Johannes van Staden, his family
members and various entities through which
Van Staden operated
fishing and exporting activities. The details of the fraud alleged do
not now concern this court. The high
court granted provisional
restraint orders against the respondents, including Van Staden, and a
rule nisi calling on them to show
cause why the orders should not be
made final.
[2] Two founding
affidavits served before the high court: that of Mr J K Rossouw, a
Deputy Director of the National Prosecuting
Authority, and regional
head of the specialized tax component, and that of Mr F P Scholtz, an
investigator in the criminal investigations
section of the SARS.
Scholtz alleged that during 2008 he had investigated the VAT returns
of Van Staden’s business entities
and suspected that they were
fraudulent. He approached Rossouw to assist with the investigation.
On 27 November 2008 he conducted
a search and seizure operation at
the premises of one of the offices from which the various Van Staden
businesses were conducted.
During the course of the search, he
alleged, the fourth respondent, Mr C de Vries, an employee of Van
Staden in effect (he was
actually employed by Indo-Atlantic
Motorcross (Pty) Ltd, the ninth respondent), approached Scholtz and
indicated that he was willing
to talk to him about the reasons for
the investigation. According to Van Staden, when he filed an opposing
affidavit after the
provisional order had been granted, De Vries was
the financial director of the ‘Indo Atlantic Group’.
[3] De Vries volunteered
to make a statement and was advised to consult an attorney first.
This he did. These facts were placed
before the high court in the
founding affidavits. The sworn statement of De Vries was provided to
SARS and to the NDPP on 8 September
2009, after the provisional
restraint order had been granted. It was not part of the record that
served before the high court when
the application to confirm the
orders was sought. The high court (per Blignault J) discharged the
order against Van Staden (orders
against other respondents were
confirmed on different occasions) principally because in the ex parte
application the NDPP had not
acted with the ‘utmost good faith’
in that it relied on the information provided only orally by De
Vries, and had failed
to obtain the De Vries affidavit as soon as
possible after the grant of the provisional restraint order. And in
addition, Blignault
J complained that the NDPP had not placed the
affidavit before him when the application for confirmation of the
restraint order
was sought. Whether the NDPP failed to act in good
faith forms the crux of the appeal before us, leave to appeal having
been given
by this court.
The information from
De Vries placed before the court in the ex parte application
[4] The evidence of
Rossouw and Scholtz about De Vries in their founding affidavits that
served before Traverso DJP was to the following
effect. When Scholtz
was approached by De Vries in the offices being searched, and De
Vries offered to speak about the investigation,
Scholtz phoned
Rossouw to advise him of this. Rossouw suggested to De Vries that he
consult an attorney before making any statement
and warned him that
he was himself a suspect, and against self-incrimination. De Vries in
fact consulted two attorneys on different
occasions, and undertook to
provide a statement under oath in due course.
[5] De Vries, as I have
said, provided that statement only on 8 September 2009. As an accused
person he could not have been compelled
by the NDPP to provide a
sworn statement. Although some of the evidence in the affidavits of
Rossouw and Scholtz was based on what
De Vries had told them, there
was much other objective evidence in addition. And, in his reply to
the opposing affidavits, Rossouw
confirmed that subsequent
investigation had for the most part confirmed what De Vries had said
before providing an affidavit.
[6] In his opposing
affidavit of 17 August 2010, before the application for confirmation
of the restraint order was sought, Van
Staden alleged that he had not
had access to De Vries’s affidavit. That was not the case. He
had been given an electronic
copy and Rossouw tendered to make it
available to the court. Rossouw stated in his reply that the De Vries
statement, if attached
to court papers, might prejudice his criminal
trial and those of the other accused. Van Staden responded through
three further
affidavits in ‘rebuttal’, but did not deal
with the material in the De Vries affidavit of which he had an
electronic
copy.
Section 26:
the
requirements for an ex parte application for a restraint order
[7] The section makes
provision for the NDPP to apply to a high court ex parte for an order
prohibiting any person from dealing
with property to which the order
relates. The section is contained in Chapter 5 of the Act which deals
with the proceeds of unlawful
activities.
Part 3
(ss
24A
-
29A
)
regulates restraint orders.
Section 24A
provides that a restraint
order and an order authorizing seizure of property which is in place
at the time of any decision made
by a court ordering confiscation
remains in force pending the outcome of any appeal against the
decision concerned. Although the
heading of the section is ‘Order
to remain in force pending approval’ it is not in my view clear
whether the section
refers to an order that has been confirmed or
also to one that is provisional. It is not necessary to decide the
matter in this
case.
[8]
Section 25
sets out
the basis upon which a restraint order may be made: either a
prosecution has been instituted, a confiscation order has
been made
or there are reasonable grounds for believing that one will be made,
and the proceedings have not been concluded; or
the court is
satisfied that a person is to be charged with an offence and ‘it
appears to the court that there are reasonable
grounds for believing
that a confiscation order may be made’. And 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.
[9]
Section 26
sets out
the procedures to be followed. The NDPP may apply ex parte for an
order prohibiting any person from dealing with property
to which the
order relates. A court may make an immediate order provisionally, and
simultaneously grant a rule nisi calling upon
the respondent
(referred to throughout these sections as a defendant) to show cause
why the restraint order should not be made
final. The high court
seized of the matter may make a number of ancillary orders dealing
with matters such as the living and legal
expenses of the respondent,
discovery and seizure of movable property. The court may also vary or
rescind the restraint order on
the application of any person affected
by it who alleges undue hardship.
[10] The point I wish to
emphasise at this stage is that the application made ex parte in this
case was not for final relief. It
was for the preservation of the
proceeds of unlawful activities that Van Staden may or may not have
acquired, pending the criminal
trial and a further determination at a
later stage as to whether those proceeds or property acquired with
them should be forfeited
in terms of the Act. When the ex parte
application was moved, the high court had before it evidence that Van
Staden was in fact
in control of companies in the group involved in
defrauding the fiscus and had himself received a benefit of at least
R100 million
for the fraud. Van Staden did not subsequently dispute
that the fraud had occurred. He instead claimed ignorance and placed
much
of the blame at the door of De Vries. But at the time when an ex
parte application is made the test to be adopted by the court in
determining whether a provisional order should be granted is now
well-settled and was expressed as follows by this court in
National
Director of Public Prosecutions v Rautenbach
:
1
‘
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 some
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 . . . 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 the 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 on 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.’
The application to
confirm the provisional order: fairness
[11] The application to
confirm the order in this matter was refused and the order discharged
on 9 March 2011. Blignault J held
that the NDPP had been in breach of
his obligation to act fairly by relying on the oral evidence of De
Vries and not providing
his affidavit in the papers that served in
the application for the order ex parte. Van Staden argued before the
high court that
De Vries’s evidence was ‘unidentified’
and hearsay. Blignault J, in dealing with this argument, said:
‘
It is
generally recognised that applications of this nature under POCA [the
Act] are draconian in effect. This is vividly illustrated
by the
facts of the present case. As a result of one single order granted
ex
parte
Mr
van Staden was deprived of all his assets and his businesses which
went into liquidation. His family life was seriously affected.
He is
now dependent on food and charity from friends for the most basic
food and clothes. It is therefore self-evident that the
NDPP must act
in such a matter with scrupulous fairness to a defendant. See
National
Director of Public Prosecutions v Mohamed NO
2003 (4) SA
1
(CC).’
[12] Two comments should
be made at this stage. First, although the effect of an order in
terms of
s 26
of the Act may be harsh, it is not generally accepted
to be draconian. The defendant is not deprived of his property
arbitrarily.
He is simply restrained from dissipating what are
alleged to be the proceeds of unlawful activities until such time as
he has been
convicted and a court is persuaded that such proceeds
should be confiscated. Nor are Van Staden’s allegations about
being
reduced to penury substantiated in the papers. His complaints
related largely to the way in which the court-appointed curator of
his assets was conducting his business affairs. And he was entitled
to apply for living expenses, as indeed he did at the same
time as
the application for confirmation was heard.
The failure to produce
the sworn statement of De Vries to the court granting the provisional
order
[13] It is no doubt
correct that in an ex parte application the applicant must act bona
fide and disclose all the information that
it has available to it to
the court – the
uberrima
fides
rule.
2
The NDPP did not question
this principle. But he argued that he did not act in bad faith in the
ex parte application. He disclosed
the fact that De Vries had been
interviewed, and revealed information that De Vries had divulged. The
deponents to the founding
affidavits made plain that De Vries had
offered to make a sworn statement but that it had not been furnished
at the time when the
application was made. Blignault J nonetheless
considered that the NDPP ‘owed the court a duty’ to
ensure that the alleged
evidence actually existed. He was thus
obliged to obtain De Vries’s sworn statement expeditiously and
make it available to
the court as soon as it was obtained. The
learned judge said the NDPP should have ‘discharged this duty
as soon as practically
possible’.
[14] But that was done.
The statement was furnished to the NDPP on 8 September 2009, and Van
Staden given an electronic copy on
29 April 2010. A copy was offered
to the high court when the confirmation was sought. It was not filed
with the court papers for
the reasons given below. It is not clear to
me why the high court decided, then, that the NDPP was in breach of
its duty to act
in the utmost good faith when it applied for the
provisional order.
Uberrima fides before
the court called upon to confirm the order
[15] The court that is
asked to confirm or discharge the order must look at the facts before
it to determine whether the order is
warranted. By the time the court
below had seen the papers they had multiplied: not only were more
facts placed on record by the
NDPP but Van Staden himself had
responded with four affidavits opposing confirmation and rebutting
the affidavits deposed to on
behalf of the NDPP.
[16] But the high court
appeared to consider that even at the stage when the confirmation
order was sought the NDPP’s conduct
was somehow tainted by
non-disclosure. Even though the De Vries affidavit had been furnished
to Van Staden, the high court took
the view that the manner of
providing it was ‘unfair’: it was recorded on a CD,
together with many other documents.
The CD had no index. Van Staden
complained that he could not find it. And it was not placed on the
court record. The NDPP explained
that the affidavit was incriminatory
and should not be placed on public record: De Vries and other
witnesses might be prejudiced.
He offered to provide the affidavit to
the court at the hearing. However, Van Staden was required to keep
the material confidential
as, in terms of his bail conditions, he was
not permitted to have contact with other witnesses. The high court’s
view that
this approach was not acceptable and showed lack of good
faith is not explicable.
[17] At the stage when
the confirmation of the order was sought the rule requiring utmost
good faith was not at issue. In
Trakman
NO v Livschitz
3
this court stated that
the rule applicable to ex parte proceedings does not extend to
opposed motion proceedings. Smalberger JA
said:
‘
Nor is there
any sound reason for so extending the principle. Material
non-disclosure,
mala
fides
,
dishonesty and the like in relation to motion proceedings may, and in
most instances should, be dealt with by making an adverse
or punitive
order as to costs but cannot, in my view, serve to deny a litigant
substantive relief to which he would otherwise have
been entitled.’
Furnishing the De
Vries affidavit in electronic form
[18] The sworn statement
of De Vries was included, in electronic form on a CD, with many other
documents, as I have said, as part
of the docket in Van Staden’s
prosecution for fraud. Van Staden complained of this and Blignault J,
in the application for
confirmation of the restraint order,
criticised the NDPP’s conduct in this regard. Although the CD
had no index there was
no reason advanced why Van Staden could not
have used a search function to find the De Vries statement.
Nonetheless Blignault J
said that this form of ‘service’
was ‘in conflict with every rule of practice and every
principle of fairness’.
This,
too,
was advanced as a reason for refusing confirmation of the order.
[19] Even in a criminal
trial the right of access by an accused to the docket is limited. In
Shabalala
v Attorney General, Transvaal
4
Mahomed DP said that even
where access to witness statements by an accused was justified, it
‘does not follow that copies
of witnesses’ statements
have to be furnished’. A fortiori Van Staden, who had access to
the document on the CD, was
not entitled to be given a printed
version. But if he had wished to obtain it in a different form he had
a right to demand discovery
of the statement. He was legally
represented throughout the proceedings and R150 000 of the
moneys subject to the restraint
order were released by the NDPP for
the payment of legal costs. There was thus no ‘inequality of
arms’
5
when the application for
confirmation of the provisional order was moved.
Van Staden’s
argument
[20] I shall deal with
the conduct of Van Staden in the appeal process in due course. His
principal argument was one in limine:
that once the provisional order
made by Traverso DJP had been discharged, there was nothing in place
to appeal against. This argument
was based on a passage in
Rautenbach
which stated:
6
‘
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 having heard the other side” (
per
Harms JA in
MV
Snow Delta:
Serva
Ship Ltd v Discount Tonnage Ltd
2000 (4) SA
746
(SCA) in para [6]), which is why a litigant who secures such an
order is not better positioned when the order is reconsidered on
the
return day (
Pretoria
Portland Cement Co Ltd and Another v Competition Commission and
Others
2003
(2) SA 385
(SCA) in para [45]). It follows that when an appeal is
sought to be brought against a discharge of such an order there is
nothing
to revive for it is as if no order were made in the first
place.’
[21] A superficial
reading of the passage appears to support Van Staden’s
argument. However, the paragraph must be viewed
as part of the whole
judgment. A reading of that reveals that the court was concerned with
two appeals: the main appeal was against
the discharge of a
provisional order granted under
s 26
of the Act; the ancillary appeal
raised the question whether the institution of the main appeal had
the effect of keeping the provisional
restraint in place. In separate
proceedings the high court held that the provisional order did not
have the effect contended for
and ordered the curator to return the
property placed under the restraint. It is that order that the
passage in
Rautenbach
quoted above referred to.
The high court found that the lodging of an appeal against that order
did not revive the provisional order.
That ancillary appeal was
dismissed by this court. The main appeal of the NDPP in this court
was against the order discharging
the provisional restraint order.
That appeal succeeded. Nugent JA confirmed the provisional order. The
fact that there was nothing
to revive does not mean that the
discharge was not appealable.
[22] Van Staden advanced
no arguments to persuade this court that the order should not be
confirmed other than those relating to
the De Vries statement. I have
dealt with those already. He disputed some of the allegations made in
the founding affidavit, but
did not refute those that are required
for a restraint order to be made. He argued also that the NDPP had
not made it clear either
to Traverso DJP when she heard the ex parte
application for the provisional restraint order, nor to Blignault J
when he heard the
application for confirmation of the order, that he
had had three years of ‘clear audits’ before the search
and seizure
took place. The relevance of this assertion escapes me.
Should the provisional
restraint order be confirmed?
[23] An order for
confiscation will be made under Chapter 5 of the Act only where there
has been a conviction, and it is proved
that the defendant has
benefited from the crime. This entails a finding by a trial court in
due course that Van Staden benefited
from the offence he committed or
a sufficiently closely related offence.
7
[24] In order to succeed
in confirming the restraint (as opposed to the confiscation) order
the NDPP must show only that there are
reasonable grounds for
believing that a confiscation order may be made at the conclusion of
the criminal trial. I have set out
the test enunciated in
Rautenbach
8
for determining whether a
restraint order should be granted. I consider that there are
reasonable grounds for believing that there
will be a conviction and
an ensuing confiscation order. The NDPP has shown on the papers, on
the probabilities, that VAT fraud
was committed by at least three
companies of which Van Staden is a director, and also the chief
executive officer; that he must
have had personal knowledge of the
fraud because of his direct control; and that there is direct
evidence showing his personal
involvement in the fraud.
[25] Van Staden has not
denied that his co-accused, in particular De Vries and one Mr G
Botha, committed fraud. He has simply denied
his own knowledge and
participation. On the NDPP’s allegations, some R246 million was
paid by SARS as VAT refunds to the
Indo-Atlantic group. Van Staden
cannot have been ignorant of the source of such a large amount of
money. In addition he personally
gave instructions to SARS to make
VAT repayments to one entity rather than another. Further details are
unnecessary. If proved,
the evidence would show that his benefit from
the VAT fraud would be in the region of R100 million.
The assets that might
be the subject of a confiscation order
[26] One of the
difficulties presented in this appeal is that Van Staden has rested
his case on a denial of his own involvement
and has not contested the
allegations that he ‘holds’ property even though it
appears that members of his family, or
entities within his business
group, are the formal owners. The heads of argument presented by him
in this appeal do not take issue
at all with the factual averments of
the NDPP in this regard. I shall revert to this matter.
[27] The NDPP contends
that Van Staden, through various business entities and family
members, has control over valuable assets,
and treats them as his
own. Van Staden’s response to the averments has changed over
the course of his opposing affidavit
and the rebuttal affidavits. He
has in effect said no more than that there was nothing untoward in
housing company assets and personal
assets in a trust. That trust
owns vehicles, immovable property and an aircraft. The likelihood is
that these assets have been
acquired with funds derived from the VAT
fraud. Other assets have been donated to Van Staden’s wife. She
has asserted that
they were given to her as personal gifts: yet he
has also averred that he has bought and sold jewellery as her agent.
Whether the
assets are truly hers remains to be tested if and when
proceedings are instituted for a confiscation order. The same is true
of
assets donated to Van Staden’s daughter. The probability is
that they are the realisable property of Van Staden himself.
[28] At this stage the
court is not called upon to do more than determine whether there are
grounds for believing that a confiscation
order may be made against
Van Staden if he is convicted of fraud. I consider that there is a
probability that he has benefited
from fraud to the extent of R100
million. The assets that he controls through a trust, companies and
family members are realisable
and subject to the provisional
restraint order. On appeal Van Staden has made no attempt to show
that these assets are not realisable
as his property. In the
circumstances the appeal against the decision not to confirm the
provisional restraint must be upheld.
Van Staden’s
conduct in the appeal
[29] The appeal was set
down for hearing on 13 September 2012. The NDPP filed its heads of
argument on 18 April 2012. Van Staden’s
heads should have been
filed by 18 May 2012. By 13 July, although there had been
correspondence between Van Staden and the office
of the NDPP, no
heads had been filed on his behalf, and he had advised the NDPP that
he intended to cross appeal and to apply for
a postponement, but that
he did not have funds to do so. The various attorneys of record who
had represented him previously had
all withdrawn because of lack of
payment. Moreover, Van Staden refused to co-operate with the NDPP
when asked to agree on documents
to be incorporated in the record,
and the latter was compelled to ask for instructions from the court.
[30] The NDPP thus wisely
anticipated that a postponement would be requested at the last minute
and his office requested the Registrar
of this court to postpone the
appeal to the fourth term of this year. That was done at the instance
of the President of this court.
[31] The matter was set
down for hearing again on 9 November 2012. The Registrar attempted in
vain to contact Van Staden. Eventually,
Van Staden was advised that
the appeal would proceed on the allocated date. In response to that
advice, Van Staden instructed another
attorney, who wrote to the
Registrar requesting a postponement of the hearing of the appeal
until the first court term in 2013.
The attorney was advised to make
a formal application, supported by an affidavit, for a postponement.
No application was filed,
but an affidavit of Van Staden was filed in
this court on 26 October 2012 in support of the request for a
postponement.
[32] The reasons advanced
for a postponement were that Van Staden had been incarcerated on 19
October 2012 in Pollsmoor Prison,
his bail having been withdrawn. The
criminal trial on the charges of fraud against him is still pending.
He claimed lack of funds
for legal representation. Van Staden has
known since July that the appeal was set down in the fourth term. He
had made no attempt
to deal with the many requests by the NDPP and
the Registrar’s office before his incarceration. The NDPP
opposed the request
for a postponement. And since no reasons of
substance were advanced by Van Staden, and no explanation was given
for ignoring the
calls and correspondence of this court, the court
refused to postpone the matter.
[33] Heads of argument
were filed on behalf of Van Staden on 7 November 2012, two days
before the hearing. Further heads were proffered
on the morning of
the appeal but the court declined to accept them since they related
not to the appeal but to a further charge
in respect of racketeering
laid against him in December 2009. That charge has nothing to do with
this appeal. Van Staden’s
conduct in this appeal has been
deplorable as his counsel readily conceded.
Order
[34] In the result the
appeal must succeed. The NDPP did not ask for the costs of junior
counsel who is employed by the NDPP.
1 The appeal is upheld
with costs including those of senior counsel.
2 The order of the high
court is set aside and replaced with the following order:
‘
The
provisional restraint order granted on 12 December 2008 is confirmed.
The respondent is ordered to pay the costs of the application
including those of senior counsel.’
______________
C H Lewis
Judge of Appeal
APPEARANCES:
Counsel for Appellant: G M Budlender
SC (with him K Saller)
Instructed by: State Attorney
Cape Town
State Attorney
Bloemfontein
Counsel for Respondent: R J
Stransham-Ford
Instructed by: Carter and Associates
Cape Town
Symington & de Kok
Bloemfontein
1
National
Director of Public Prosecutions v Rautenbach
2005 (4) SA 603
;
2005 (2) SACR 530
(SCA) para 27.
2
Zuma
v National Director of Public Prosecutions
2009 (1) SA 1
(CC)
para 296.
3
Trakman
NO v Livschitz
1995 (1) SA 282
(A) at 288F-H.
4
Shabalala
v Attorney General, Transvaal
[1995] ZACC 12
;
1996 (1) SA 725
(CC) para 38.
5
A
reference to the judgment of Blignault J when refusing leave to
appeal, and distinguishing this case from that in
Trakman
above,
on which the NDPP relied.
6
Above,
para 12.
7
Section
18(1)
of the Act.
8
Above,
para 27. See also
National Director of Public Prosecutions v
Basson
2002 (1) SA 419
(SCA) para 19 and
National Director of
Public Prosecutions v Kyriacou
2003 (2) SACR 524
(SCA) para 10.