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[2010] ZASCA 143
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National Director of Public Prosecutions v Naidoo & Others (419/09) [2010] ZASCA 143; 2011 (1) SACR 336 (SCA) ; [2011] 2 All SA 410 (SCA) (25 November 2010)
Links to summary
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
419/09
In the matter between:
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
…........................
Appellant
and
RAJAN NAIDOO
…........................................................................
First
Respondent
ZAKHELE SITHOLE NO
….......................................................
Second
Respondent
DOLLY NAIDOO
...........................................................................
Third
Respondent
TWO LINE TRADING 87 (PTY) LTD
..........................................
Fourth
Respondent
YAMANI PROPERTIES 1015 (PTY) LTD
......................................
Fifth
Respondent
Neutral citation:
National
Director of Public Prosecutions v Naidoo & Others (419/09)
[2010]
ZASCA 143
(25 November 2010)
Coram:
MPATI P,
CLOETE, PONNAN, BOSIELO and TSHIQI JJA
Heard: 25 August 2010
Delivered: 25 November 2010
Summary:
Section
26(6)
of the
Prevention of Organised Crime Act 121 of 1998
–
exercise of a court’s discretion in terms of
s 26(6)(a)
and (b)
– does this envisage an order for payment of legal expenses of
a defendant from property subject to restraint order
but held by
another person or entity.
_____________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North
Gauteng High Court, Pretoria. (Poswa J sitting as court of first
instance):
1. Leave to appeal is granted.
2. The appeal is upheld with costs including the costs of two
counsel.
3. The order of the court below is set aside and is substituted with
the following:
‘
The application is dismissed with costs
including the costs of two counsel where two counsel were employed.’
______________________________________________________________
JUDGMENT
______________________________________________________________
MPATI P et
TSHIQI JA
(Cloete, Ponnan and Bosielo JJA concurring)
[1] The first respondent, ‘Mr Naidoo’,
is an accused in a pending criminal matter in the South Gauteng High
Court, Johannesburg.
He has been indicted, together with a number of
co-accused, on 119 charges of alleged illegal dealing in unwrought
precious metals
– ranging from theft of platinum, falsification
of documents, mining rights and exchange control irregularities. The
docket
consists of approximately 250 000 pages both in electronic
form and hard copy.
[2] On 1 October 2004, the appellant, the National
Director of Public Prosecutions (‘NDPP’) obtained,
ex-parte, a provisional
restraint order
1
against Mr Naidoo in terms of s 26 of the
Prevention of Organised Crime Act 121 of 1998 (‘POCA’).
On 1 September 2005,
the provisional order was confirmed and was
extended, by agreement, to include all property owned by Mrs Naidoo,
the third respondent,
Two Line Trading 87 (Pty) Ltd (‘Two
Line’) and Yamani Properties (‘Yamani’), the fourth
and fifth respondents
respectively. Mrs Naidoo is Mr Naidoo’s
ex-wife. They still live together at the same address. She exercises
control over
Two Line and Yamani. The extension of the order to the
property of Two line and Yamani was based on a contention by the NDPP
that
they had received affected gifts from Mr Naidoo in an amount of
R1,5m.
2
Whether the property constitutes an affected gift
in terms of POCA will be determined by the trial court and is not a
subject of
the present enquiry. The second respondent was appointed
as one of the two curatores bonis in respect of all the property
under
restraint (s 28). The other has since passed away.
[3] On 26 July 2007, Mr Naidoo brought an urgent
application in the North Gauteng High Court for an order directing
the curator
to pay to his attorneys of record a sum of R2 million
towards his legal expenses, alternatively an order varying the
restraint
order against him to the effect that his reasonable legal
expenses in the pending criminal matter be paid out of the funds
standing
to the credit of Two Line and Yamani upon presentation of an
account. Mrs Naidoo has consented to the relief sought. The
application
was opposed by the NDPP primarily on the basis that s
26(6) of POCA does not envisage payment of legal expenses of a
defendant
3
from the property of a person or entity other than
the defendant because, so the NDPP argued, the other entities have
not made full
disclosure of their assets as required in terms of s
26(6)(a) and (b) of POCA.
[4] The application was granted and the NDPP was
ordered by Poswa J, on 26 July 2007, to pay an amount of R1 915 000
from the property
held by the curator in terms of the restraint
order. Only brief reasons were given for the order and Poswa J
undertook to furnish
further reasons if called upon to do so. The
matter came to this court as an application for leave to appeal
against the order
of the court below on grounds of constructive
refusal of leave by that court. The circumstances that led to the
application to
this court are the following:
[5] On 3 August 2007, the attorney representing
the NDPP addressed a letter to Poswa J requesting full reasons for
his order and
stating that ‘upon consideration of the full
reasons client shall decide on whether to approach the honourable
court for
leave to appeal or not’. On 13 September 2007, the
secretary to the judge wrote a letter to the attorneys referring to
another
letter from them dated 11 September 2007. The secretary
stated that he had been asked by the judge to confirm that the latter
had
been approached by Mr Masilo (the attorney dealing with the
matter) a few days after the matter was finalised, requesting reasons
for the judgment. The rest of the letter proceeds:
‘
His
Lordship informed him that furnishing reasons will be tantamount to
writing a full reasoned judgment and that he is in no position
to do
so in the near future. What his Lordship did not tell Mr Masilo was
that he hoped to write the judgment during the coming
short recess.
However, there is no longer such a hope because his Lordship will be
doing his recess duty during that week.
Whilst the reason for your
wanting the reasons for judgment is understandable, there is no
chance that his Lordship will write the
judgment before the long
recess.’
[6] It seems that the letter dated 11 September
was either copied to the Judge President of the court or a separate
letter was sent
to him because on 18 October 2007, the Judge
President addressed a letter to the attorneys acknowledging their
letter of 11 September
and undertaking to revert once he had received
a response to his letter of enquiry addressed to the judge concerned.
The Judge
President further requested the attorneys to update him
once the reasons had been given. In the meantime and on 27 October,
the
NDPP filed an application for leave to appeal in terms of Rule
49(1)(b) of the Uniform Rules.
4
[7] On 31 October, three months after the order was given, the judge
responded to the enquiry raised by the Judge President. Paragraphs
two to three of the letter state the following:
‘
I do
not know when your letter reached my chambers but I became aware of
it only after 22 October, 2007, when I was browsing through
my mail,
whilst being on sick leave. It may be that it arrived whilst my
current registrar was out writing examinations and that
my attention
was not, therefore, timeously drawn to its existence. My apologies.
This case was
before me during the urgent court proceedings, at the end of July,
2007. I gave brief reasons indicating that I expected
that I might be
called upon to give more detailed reasons, in the future. A week or
so – or even less – after 26 July,
2007, Mr Masilo was in
my chambers, asking for full reasons. I did not chastise him for
approaching me, a judge, for that purpose
and in that fashion. You
know, JP, that is unprofessional. I told him that full reasons are –
as I had said in court –
tantamount to a full judgment, that I
did not have time to attend to it before the short recess, as I had
other judgments that
took precedence to it. It surprises
me that Mr
Masilo wrote this letter – which, by the way, reached me
shortly after 11 September, 2007. Incidentally, something
I had
forgotten when I spoke to Mr Masilo – I had no short recess,
having been in the unopposed motion roll. So, regrettably
I cannot
touch that judgment before January, 2008. I attach a copy of a letter
I wrote on 13 September 2007, in reply to Mr Masilo’s
letter.
My registrar (Francois) and I are uncertain as to whether it was,
indeed, forwarded to Mr Masilo, as Francois went for
study leave in
about that time.’
[8] The contents of the letter show that despite a
lapse of a period of three months and despite the fact that the
application had
been heard in the urgent court, the matter would
remain outstanding for another two to three months. Another aspect
worth noting
is that the letters from the office of the judge show
that he was annoyed by the attorney’s persistent requests. One
such
letter, signed by the secretary of the judge, is dated 14
December 2007. It reads:
‘
The
copy of the letter you wrote to the Judge President, which you
brought to my office today, at about 11:00 on Friday 14 December
2007, refers.
I communicated with his Lordship
Mr Justice Poswa who is on leave in Durban and reported to him what
happened today, including your
reluctance to wait for me to refer to
correspondence. I have now gone through the correspondence and read
it to His Lordship. He
has instructed me to enclose copies of some of
the correspondence to you, which is really what I meant to read to
you while you
were here.
Herewith faxed are the following
letters, from which you ought to have a full picture of the history
of this case and its future:
a letter to your office dated
13 September, 2007; and
a letter addressed to the Judge
President dated 31 October, 2007.
You will
realise, from
the
second letter, that His Lordship and I were uncertain as to whether
or not you received the first of these two letters, which
is why it
was attached to the second one.
His Lordship
has
requested
me to convey to you his displeasure with your attitude, if you
received the two letters, because there is nothing more
he can
explain to you in this regard, neither is there anything he can do
pertaining the situation.
In the interim, we are unable to
find the file up to now, and wonder whether you have not, per chance,
removed it. We only raised
this with you because it cannot be found.
His Lordship has the transcript of proceedings with him and that of
his ex tempore judgment.
He does, however, require the file.’
[9] On 24 March 2008, a period of eight months
after the order was granted, the attorneys for the NDPP addressed yet
another letter
to the judge persisting with the request for the full
reasons. On 14 April, the judge responded, again showing that he was
annoyed
by the request:
‘
Your
letter of 28 March, 2008, which was placed on my desk at about 10:30
today – shortly after your clerk delivered it –
refers.
Since my letter of 31 October,
2007, I have not had opportunity to write full reasons in this
matter, simply because of other judgments
– ahead of yours –
that I have been dealing with. I have requested one month’s
leave, in advance of my leave
period, to deal with my judgments. This
is in view of special circumstances that relate to me only, including
my history of periods
of sick-leave. Your judgment may be dealt with
during that period. Beyond what I am doing, there is nothing I can do
to appease
you, I find it difficult to keep writing letters about a
judgment in respect of which I have already gone out of my way to
make
written explanations. I suggest you start trusting that I am not
simply idling – doing nothing to get to your matter.’
[10] Persistent requests for reasons for an order
should not be a source of irritation for a judge. This much was made
clear by
this court in
Pharmaceutical
Society of South Africa (Pty) Ltd v Tshabalala-Msimang NO; New Clicks
South Africa (Pty) Ltd v Minister of Health
2005
(3) SA 238
(SCA) at 260G to 261H, where the following dictum appears:
‘
One
does sense that the Court below was irritated because the applicants
had the temerity to ask for a quick disposition of the
applications
for leave. There are some who believe that requests for “hurried
justice” should not only be met with
judicial displeasure and
castigation but the severest censure and that any demand for quick
rendition of reserved judgments is
tantamount to interference with
the independence of judicial office and disrespect for the Judge
concerned. They are seriously
mistaken on both counts. First, parties
are entitled to enquire about the progress of their cases and, if
they do not receive an
answer or if the answer is unsatisfactory,
they are entitled to complain. The judicial cloak is not an
impregnable shield providing
immunity against criticism or reproach.
Delays are frustrating and disillusioning and create the impression
that Judges are imperious.
Secondly, it is judicial delay rather than
complaints about it that is a threat to judicial independence because
delays destroy
the public confidence in the judiciary. There rests an
ethical duty on Judges to give judgment or any ruling in a case
promptly
and without undue delay and litigants are entitled to
judgment as soon as reasonably possible’.
(The
footnotes have been omitted.)
[11] There was no further exchange of
correspondence for two months. Ten months later, on 28 May 2008 and
again on 17 June, the
attorneys wrote further letters to the judge
enquiring about progress. Copies of the letters were sent to the
Judge President.
On 17 June, the Judge President responded and
informed the attorneys that he had referred their letter to the judge
with a request
that the Judge President’s office and the
parties be informed when judgment would be delivered. It appears that
none of these
letters elicited any response from the judge.
[12] On 9 September, after a period of another two
months, and a period of close to 13 months after the order, the
attorneys again
addressed a letter to the judge enquiring about
progress. A copy was sent to the Judge President. It appears that
after the exchange
of this correspondence the application for leave
to appeal was set down for 23 October 2007. This is evident from the
following
letter from the attorneys to the Judge President dated 28
October 2008:
‘
The
above matter has reference specifically the attached letter dated 9
th
September
2008 from our office.
On the 23 October 2007 we made
an application for leave to appeal in terms of Rule 49(1)(b) see
annexure “A”. However
the application was never proceeded
with because of the long awaited response for judgment from the
Honourable Justice Poswa.
It is our client’s
instructions to request the honourable Judge President to place the
matter on the roll before a new judge
because the delay by Justice
Poswa has adversely affected the criminal prosecution in this matter.
Your urgent attention to this
matter will be appreciated.’
[13] It is difficult to understand why the judge
failed to deal with the application for leave to appeal at that
stage. The reasons
he had undertaken to furnish had not been
forthcoming for a period of approximately 15 months and the parties
were suffering prejudice.
What was required of him was simply to make
a decision as to whether or not he believed there was a reasonable
prospect that another
court would come to a different conclusion.
5
The failure to deal with the application for leave
was in itself another regrettable omission by the judge.
[14] On 12 November 2008, the Judge President
acknowledged the letter and attached his own letter of even date
addressed to the
judge. He further requested the attorneys to inform
him if reasons were not furnished by the end of November. The letter
(dated
12 November from the Judge President) to the judge informed
him that if the reasons were not forthcoming by the end of November,
he would unfortunately submit the query to the Judicial Service
Commission (‘JSC’). Clearly (in this letter), the Judge
President was conveying his own frustration about the sequence of
events. Even after this, the judge did not seize the opportunity
because, on 1 December, the attorneys addressed yet another letter to
the Judge President informing him that they were disappointed
to
inform him that the judge had failed to furnish the reasons by the
end of November. They further requested the Judge President
to refer
the matter to the JSC as stated in his letter of 12 November. On 14
January 2009, the Judge President addressed a letter
to the attorneys
informing them that the matter had been reported to the JSC by his
letter dated 10 December and requested them
to inform him when the
reasons had been furnished. On 3 March, the attorneys addressed a
letter to the Judge President highlighting
the prejudice suffered by
their client as a result of the delay, and in doing so motivated
their request for the matter to be enrolled
afresh before another
judge in terms of Rule 49(1)(e) of the Uniform Rules of Court.
6
[15] On 18 March 2009, the Judge President
responded, stating that it would not be possible to place the matter
on the roll as suggested
and reiterated that the matter had been
reported to the JSC and that he expected the JSC to respond in due
course. On 7 May, the
attorneys, as a last resort, addressed a letter
to the judge outlining the history of the matter and informing him
that they had
instructions to approach this court directly for an
application for leave to appeal on the basis that the failure to
furnish reasons
should be treated as a refusal of leave. In the
alternative they enquired whether the judge was willing to permit
them to argue
the application for leave without his full reasons.
There was no response to this letter.
[16] It is against this background that an
application, in terms of s 20(4)(b) of the Supreme Court Act 59 of
1959
7
,
was brought directly to this court for leave to appeal on the basis
that the delay in furnishing the reasons and the failure to
deal with
the application for leave amounted to a constructive refusal of leave
to appeal. This Court, on 11 September 2009, referred
the application
for oral argument in terms of s 21(3)(c)(ii),
8
with a further direction that the parties be
prepared to argue the merits of the appeal if called upon to do so.
[17] At the outset of the application, counsel for
the respondents readily conceded that the delay, coupled with the
failure to
deal with the application for leave to appeal, amounted to
a constructive refusal to grant leave. This was a sensible concession
by counsel.
[18] The importance of furnishing reasons for a
judgment is a salutary practice. Judicial officers express the basis
for their decisions
through reasoned judgments. A statement of
reasons gives assurance to the parties and to any other interested
member of the public
that the court gave due consideration to the
matter, thereby ensuring public confidence in the administration of
justice.
[19] In
Botes v
Nedbank Ltd
(supra) this court remarked
that a reasoned judgment may well discourage an appeal by the loser
and that the failure to state reasons
may have the effect of
encouraging an ill-founded appeal. Coincidentally, in their first
letter dated 3 August 2007, the attorneys
for the NDPP stated that
they required the full reasons in order to decide whether or not to
apply for leave to appeal –
clearly showing that the reasons
would help inform the future conduct of the matter. The delay in
furnishing the reasons deprived
them of the opportunity to exercise
their options. The importance of furnishing reasons for a judgment
was again stressed by Navsa
JA at para 32 of his judgment in
Road
Accident Fund v Marunga,
9
where
the learned judge
of appeal referred with approval to an extract from an article by the
former Chief Justice of the High Court of
Australia, the Rt
Honourable Sir Harry Gibbs.
10
[20] There may be instances where it is
unavoidable to give brief reasons with an undertaking to provide full
reasons later or when
requested to do so. Because of the several
complications which may arise if this practice is adopted, it should
be utilised sparingly.
Such complications were highlighted by the Hon
MM Corbett in the following manner:
11
‘
The
true test of a correct decision is when one is able to formulate
convincing reasons (and reasons which convince oneself) justifying
it. And there is no better discipline for a judge than writing (or
giving orally) such reasons. It is only when one does so that
it
becomes clear whether all the necessary links in a chain of reasoning
are present; whether inferences drawn from the evidence
are properly
drawn; whether the relevant principles of law are what you thought
them to be; whether or not counsel’s argument
is as well
founded as it appeared to be at the hearing (or the converse); and so
on. The practice referred to (that is, an immediate
order, reasons
later) leaves no room for afterthought or changing one’s mind
about the case. You should follow it only when
you are convinced that
no amount of subsequent consideration or research, and more
particularly the actual writing of the reasons,
can possibly lead one
to a different conclusion.
Another
disadvantage of the practice
of
giving an order, reasons later, is the delay which often occurs in
the furnishing of those reasons. I think that sometimes there
is a
feeling that the parties have their order and there is no urgency
about the reasons. This is the first step down that slippery
slope of
procrastination, which is part of the law’s notorious delay. My
advice is that you treat such reasons with the same
urgency and
expedition as you devote to your ordinary reserved judgment. If
anything, they should enjoy priority. There is nothing
worse than
allowing a matter to become stale; to lose one’s grasp of the
case and one’s recollection of the reasons
which prompted the
order. Moreover, the parties are still just as interested in the
reasons despite the order having been granted;
and further
proceedings may
be
contemplated, which could depend on the reasons and the way in which
they are formulated.‘
[21] The delay and the ‘slippery slope of
procrastination’ against which the former Chief Justice
cautioned, patently
characterised the present matter. It is
regrettable that no positive response was forthcoming even after the
intervention of the
Judge President who was clearly placed in a very
compromising position.
[22] In approaching this court for leave to
appeal, the NDPP did so as a last resort. There was clearly nothing
more that could
be done. The unreasonable delay in dealing with the
application for leave to appeal was prejudicial to the parties.
During a meeting
held between the prosecutors and the legal
representatives of Mr Naidoo’s co-accused, it transpired that
the outcome of the
appeal was awaited by the other accused who would
decide whether to bring similar applications or utilise the services
of the Legal
Aid Board for their legal expenses.
[23] This court has on occasion granted leave on
the basis of a constructive refusal by a trial court to grant leave.
In
Minister of Health NO v New Clicks
South Africa (Pty) Ltd
(
Treatment
Campaign as
amici curiae
)
12
the court stated:
‘
It
must be accepted, however, that there may come a time when a delay in
resolving an application for leave to appeal amounts to
a
constructive refusal of the application, entitling the aggrieved
litigant to apply to the Appeal Court to grant leave itself.
What
constitutes an unreasonable delay will depend on the circumstances of
the case.’
[24] We now consider whether leave in the present
matter should be granted. This entails a consideration of the
applicant’s
prospects of success on appeal.
[25] The issue on the merits is whether the
provisions of POCA confer upon a high court the power to provide for
the payment of
a defendant’s reasonable legal expenses from a
source other than the restrained assets held by that defendant. It is
convenient
to set out the provisions of POCA which, in our view, have
a bearing on this issue.
[26] Section 14:
‘
(1)
Subject to the provisions of subsection (2), the following property
shall be realisable in terms of this Chapter, namely -
any property held by the
defendant concerned; and
any property held by a person
to whom that defendant has directly or indirectly made any affected
gift.
(2) Property
shall not be realisable property if a declaration of forfeiture is in
force in respect thereof.’
Section 26(1):
‘
The
National Director may by way of an
ex
parte
application
apply to a competent High Court for an order prohibiting any person,
subject to such conditions and exceptions as may
be specified in the
order, from dealing in any manner with any property to which the
order relates.’
Section 26(2):
‘
A
restraint order may be made-
(a) in respect of such
realisable property as may be specified in the restraint order and
which is held by the person against whom
the restraint order is being
made;
(b) in respect of all realisable
property held by such person, whether it is specified in the
restraint order or not;
(c) in
respect of all property which, if it is transferred to such a person
after the making of the restraint order, would be realisable
property.’
Section 26(6):
‘
(6)
Without derogating from the generality of the powers conferred by
subsection (1), a restraint order may make such provision
as the High
Court may think fit -
(a) for the reasonable living
expenses of a person against whom the restraint order is being made
and his or her family or household;
and
(b) for the reasonable legal
expenses of such person in connection with any proceedings instituted
against him or her in terms of
this Chapter or any criminal
proceedings to which such proceedings may relate,
if the court
is satisfied that the person whose expenses must be provided for has
disclosed under oath all his or her interests
in property subject to
a restraint order and that the person cannot meet the expenses
concerned out of his
or
her unrestrained property.’
[27] There is an obvious tension between the need
to prevent the dissipation of assets held by an accused person that
allegedly
constitute the proceeds of crime and the need to ensure
that that person’s fair trial rights, particularly the
presumption
of innocence, are not imperilled. It is the reconciling
of this tension that is sought to be achieved by s 26(6). In the
normal
course, but for the restraint order, Mrs Naidoo, Two Line and
Yamani would have been free to provide Mr Naidoo with such funds as
they saw fit to enable him to fund his criminal defence. In effect
what we are called upon to decide is whether anything contained
in s
26 precludes them from now doing so.
[28] The appellant submitted that Mr Naidoo could
only approach the court for the relief that he sought in terms of s
26(6)(b).
In terms of that subsection, so the submission went, the
court may only make provision for legal expenses out of his own
property
and not property in the hands of one or more of the other
respondents.
[29] Poswa J understood Mr Naidoo’s counsel
to be submitting, in essence, that because the property concerned
constitutes
affected property it belongs to Mr Naidoo. In accepting
this argument the learned judge said –
‘
The
effect of the provisional order is, therefore, that all the property
restrained belongs to the applicant [Mr Naidoo], until
such time that
the criminal action or the contemplated civil action is finalised.
That is an order sought and obtained by the first
respondent [the
NDPP]. In the circumstances, I do not understand how the first and
second respondents [the NDPP and the
curator
bonis
]
can claim that the property that the applicant [Mr Naidoo] has
identified, for purposes of the present application, is the third
respondent’s [Mrs Naidoo’s]. It is true that the
applicant [Mr Naidoo], in the current application, described the
property as the third respondent’s [Mrs Naidoo’s]. That
does not, however, alter its current legal status in terms of
the
restraint order, in my view.’
In our view, this process of reasoning by the court a quo was
incorrect.
[30] POCA does not provide that once property held
by a person to whom a gift was made becomes the subject of a
restraint order
on the grounds that it constitutes an ‘affected
gift’, it is deemed to be the property of the defendant who
made the
gift. It was suggested before us that one could possibly
come to this conclusion on the basis of the meaning of the words
‘realisable
property’ in ss 14 and 26(2) of POCA. We
disagree. ‘Realisable property’ is defined in s 14 as
‘(a) any
property held by the defendant concerned’; and
‘(b) any property held by a person to whom that defendant has
directly
or indirectly made any affected gift’. The aim of the
definition is therefore to spread the net wider so as to cover not
only property held by a defendant but also property held by someone
to whom such defendant has made a gift. The definition does
not alter
the law as to ownership.
[31] The purpose of POCA is, inter alia, to
‘introduce measures to combat organised crime,’ and ‘to
provide for
the recovery of the proceeds of unlawful activity’.
A restraint order cannot be made in respect of any property. Section
26(1) of POCA confers on a high court the power to make an order
prohibiting any person ‘from dealing in any manner with any
property to which the order relates’. That order is termed a
‘restraint order’.
13
Its ambit is regulated by s 26(2), which provides
that it (the restraint order) may be made in respect of realisable
property ‘
which is held by the
person against whom the restraint order is being made’
(s 26(2)(a)). (Our underlining.) So, the person
who is prohibited from ‘dealing in any manner with any
property’, ie
the person against whom the restraint order is
made, is the person who holds the property that is the subject of the
restraint
order. It follows that a restraint order can only be made,
in terms of POCA, against a person who is the holder of property
alleged
to be realisable property (s 26(2)(a) and (b)), or becomes
the holder after the restraint order is made (s 26(2)(c)).
[32] The plain grammatical meaning of s 26(6)(b)
read with s 26(6)(a) is that a restraint order may make provision for
the legal
expenses of ‘a person against whom the restraint
order is being made’ – not for the legal expenses of a
third
person against whom a restraint order is also being made at the
same time, and which must, for the reasons given in the previous
paragraph, be in respect of property held by the latter. So the
restraint order against Mr Naidoo may make provision for his legal
expenses. But the restraint orders made against Mrs Naidoo and the
companies she controls cannot make provision for Mr Naidoo’s
legal expenses as he is not the person against whom those restraint
orders were made.
[33] A defendant who wishes property under
restraint to be released for his or her reasonable legal expenses in
connection with
the proceedings instituted against him or her in
terms of POCA, is required to satisfy the court that he or she has
disclosed under
oath all his or her interest in such property (s
26(6)). But the ‘interest’ to be disclosed is the
interest in realisable
property under restraint ‘which is held
by the person against whom the restraint order is being made’
(s 26(2)(a)).
[34] It is common cause that the property which Mr
Naidoo seeks to be released for his reasonable legal expenses is not
subject
to a restraint order against him. The provisional restraint
order granted by De Villiers J in October 2004 states that it relates
to realisable property ‘so far as it remains property
held
by the Defendants and any of the Respondents’
(paragraph 1.1.1). (Our underlining.) The relevant provisions of the
order granted
by Rabie J on 1 September 2005 by agreement pursuant to
an application by nine applicants, to which Mrs Naidoo, Two Line and
Yamani
were party, following the grant of the provisional restraint
order, state that –
‘
1. It
is declared that the assets of the First [Mrs Naidoo], Second, Fourth
[Two Line], Fifth [Yamani] . . . Applicants are subject
to the
provisional restraint order granted by De Villiers J . . . on 1
October 2004;
. . .’
‘
5. The
First [Mrs Naidoo], Second, Fourth [Two Line], Fifth [Yamani] . . .
Applicants undertake not to utilise the property subject
to restraint
in terms of this order in a manner that would dissipate, encumber or
diminish
in
any way the value of the said property;
. . .’
14
Clearly, therefore, the assets of Mrs Naidoo and
of Two Line and Yamani, which would include affected gifts, became
the subject
of a restraint order against them and not against Mr
Naidoo. It follows that Mr Naidoo cannot invoke the provisions of s
26(6)
to obtain the release, for his legal expenses, of assets which
are the subject of a restraint order made against Mrs Naidoo, Two
Line and Yamani.
[35] The following order is accordingly made:
1. Leave to appeal is granted.
2. The appeal is upheld with costs including the costs of two
counsel.
3. The order of the court below is set aside and is substituted with
the following:
‘
The application is dismissed with costs
including the costs of two counsel where two counsel were employed.’
_______________________
L MPATI
PRESIDENT
_______________________
Z L L TSHIQI
JUDGE OF APPEAL
APPEARANCES
APPELLANT: E C LABUSCHAGNE SC (with him E NDALA)
Instructed by Masilo Inc,
Pretoria;
Naudes Attorneys, Bloemfontein.
RESPONDENTS: W VERMEULEN SC (with him N REDMAN)
Instructed by Yusuf Ismail Attorneys,
Pretoria; Rossouws Attorneys, Bloemfontein.
1
Para
1.38 of the order states as follows:
‘
1.38 If any Defendant or
Respondent satisfies the Court on oath that:
He/she has made full disclosure under oath of all
his/her interests in the property subject to the restraint; and
He/she cannot meet the expenses concerned out of
his/her unrestrained property,
the
Curatores bonis
may,
upon the request of such person, release such of the realisable
property within their control as may be sufficient to meet:
The reasonable current and prospective living
expenses of such person and his/her family or household; and
The reasonable current and prospective legal
expenses of such person in connection with any proceedings
instituted against
him/her in terms of chapter 5 of the Act or
any criminal proceedings to which such proceedings relate.’
2
Section
12 of POCA defines affected gifts as ‘any gift -
made by the defendant concerned not more than seven
years before the fixed date; or
made by the defendant concerned at any time, if it was
a gift –
of property received by that defendant in connection
with an offence committed by him or her or any other person; or
of property, or any part thereof, which directly or
indirectly represented in that defendant’s hands property
received
by him or her in that connection,
whether any such gift was made before or after the
commencement of this Act.’
3
‘
Defendant’
(see s 12) is defined as ‘a person against whom a prosecution
for an offence has been instituted, irrespective
of whether he or
she has been convicted or not, and includes a person referred to in
section 25(1)(b)’.
4
Rule
49(1):
‘
(b) When leave to appeal is
required and it has not been requested at the time of the judgement
or order, application for such
leave shall be made and the grounds
therefor shall be furnished within fifteen days after the date of
the order appealed against:
Provided that when the reasons or the
full reasons for the court’s order are given on a later date
than the date of the
order, such application may be made within
fifteen days after such later date: Provided further that the court
may, upon good
cause shown, extend the aforementioned periods of
fifteen days.’
5
A
judge is not obliged to furnish reasons for such an order. In
certain circumstances it may be necessary and certainly helpful
to
do so. (
Botes v Nedbank Ltd
1983
(3) SA 27
(A) at 28E-F).
6
Rule
49(1)(e) provides that leave to appeal ‘shall be heard by the
judge who presided at the trial or, if he is not available,
by
another judge of the division of which the said judge, when he so
presided, was a member’.
7
Section
20(4)(b) of the Supreme Court Act provides that ‘in any other
case, with the leave of the court against whose judgment
or order
the appeal is to be made or, where such leave has been refused, with
the leave of the appellate division’.
8
Section
21(3)(c)(ii) provides: ‘The judges considering the petition
may order that the application be argued before them
at a time and
place appointed, and may, whether or not they have so ordered - …
(ii) refer the application to the appellate
division for
consideration, whether upon argument or otherwise, and where an
application has been so referred to the appellate
division, that
division may thereupon grant or refuse the application’.
9
2003
(5) SA 164
(SCA).
10
‘
The
citizens of a modern democracy – at any rate in Australia –
are not prepared to accept a decision simply because
it has been
pronounced, but rather are inclined to question and criticise any
exercise of authority, judicial or otherwise. In
such a society it
is of particular importance that the parties to litigation –
and the public – should be convinced
that justice has been
done, or at least that an honest, careful and conscientious effort
has been made to do justice, in any
particular case, and the
delivery of reasons is part of the process which has that end in
view.’
Australian
Law Journal
(vol
67A) (1993) at 494-502.
11
The
Hon MM Corbett ‘Writing a Judgment’
(1998) 115
SALJ
116
p 118.
12
2006
(2) SA 311
(CC) p 317.
13
Restraint
order is defined in Chapter 5 of POCA as ‘an order referred to
in section 26(1)’.
14
The
First, Fourth and Fifth applicants referred to in the order are the
third, fourth and fifth respondents in this appeal.