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[2018] ZAFSHC 9
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Ex parte: National Director of Public Prosecutions (168/2018) [2018] ZAFSHC 9 (9 March 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 168/2018
Before
the Honourable Justice
AF
JORDAAN
On
the
09
th
day of
MARCH 2018
In
the ex parte application of
:
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
Applicant
In
re:
an application
in terms of section 38 of the Prevention of Organised Crime Act, Act
121 of 1998, for the preservation of certain
property described in
"Annexure A"
Having
considered the notice of motion and the other documents filed of
record and having heard Counsel for applicant,
IT
IS ORDERED THAT:
1.
An order is granted in
terms of
section 38
(2) of the
Prevention of Organised Crime Act,
121
of
1998
(POCA)
preserving
certain property described as:
1.1
The remaining extent of
the
farm
Krynaauws Lust 275, district Vrede, Free State Province, measuring:
4439,5122 (four thousand, four hundred
and
thirthy
nine
comma
five
one
two
two
hectares).
1.2
Money not exceeding an
amount of R40
360
154-98 which constitutes proceeds of crime in the following bank
accounts held individually or by companies described in Annexure
A to
the draft order. The immovable and the movable property mentioned
above
are
hereinafter referred
to
as
"the
property".
2.
In terms of
section 38
(2) of
POCA
and
subject to the provisions of this order, all persons with knowledge
thereof are prohibited from disposing of, further encumbering,
dissipating, interfering with, attaching or selling in
execution,
diminishing
the value of or dealing in any other manner with
the property
to
which this order relates.
3.
Notwithstanding the
provisions of this order, any person who has financial obligations in
respect of any of the property is ordered
to fulfil such obligations,
inlcuding any obligations relating to installment payments and all
interest accruing in respect of
such obligations, pending the
finalisation of the forfeiture proceedings unless such person[s)
signs a consent to judgment in favour
of the
applicant.
4.
In terms of
section 42
of
POCA, Eugene Nel
of
Vesticraft, located as Suite 8, 2nd Floor, Block C, Town Bush Office
Park, 460 Town Bush Road Montrose, Pietermaritzburg is appointed
as
curator bonis
over
the property
(the
curator bonis).
The
curator bonis
shall
have all such powers, duties and authority as provided for in
POCA
and in this order.
5.
The
curator
bonis
is authorised to
assume control of the property and do any and all things necessary to
preserve the property while the order is
in
force.
6.
Any person who holds
the property
is
directed in terms of
section 42(l)(b)
of
POCA
to surrender
the
property
forthwith
into the custody of the
curator bonis,
failing
which any member of the South African Police Services or other agency
if the facts render it necessary or appropriate is
hereby authorised,
on the instruction of the
curator bonis,
to
seize the relevant property and place it in the custody of the
curator bonis.
7.
The
curator
bonis
must file a report
with the Registrar of this Honourable Court within 40 days of the
granting of the preservation order which report
shall contain an
inventory of the property taken into his custody in terms of this
order, in which report he shall set out the
steps that have been
taken by him to give effect to this order, and make any further
recommendations as he may deem fit regarding
any other steps he might
be required to take in order to give effect to the order. The
curator
bonis
must file
supplementary reports containing additional relevant information as
and when such reports become necessary.
8.
The fees and expenditure
of the
curator bonis
must,
in terms of
section 42(2)
of POCA be paid from the forfeited
property. In the event of no forfeiture order being granted, then
such fees and expenditure
must be paid by the State, provided further
that interest on expenditure incurred by the
curator bonis
shall be paid by the State
at the prime lending rate of the major financial institutions from
the date of expenditure until the
date of final
payment.
9.
The
curator
bonis
shall have such
powers, duties and authority as
provided for or implied
in POCA and such further powers as are specified or implied in this
Order including but not limited to,
the
following:
9.1
to take all reasonable
and lawful steps to discover any facts
relating to any of
the property and to locate it with the
view of achieving the
object of this order, read
in the context of POCA and, in particular,
section 339(1)
thereof;
9.2
to require any interested
party to make full disclosure under and in terms of this order
and to provide such further and specific
information as the
curator
bonis
considers relevant to
any fact that has been disclosed, which authority shall be exercised
with the view of achieving
the objects of this order,
read in the context of
POCA
and in particular,
Sections 42
and
43
of
POCA;
9.3
to deal with any funds in
any banking accounts forming part of the
property
and is accordingly
authorised to hold the necessary signing powers on such accounts and
to give directions to banking institutions,
and other persons in
control of any of those funds regarding the utilisation of such
funds;
9.4
to inspect, copy and
analyse all documents held by or on behalf of the interested parties
or any data on any computer software or
hardware used by the
interested parties with the view of tracing and locating, as may be
necessary, the
property;
9.5
to make enquiries from
the interested parties as well as their respective accountants or
auditors and pursuant to such enquiries
inspect, copy and
analyse all relevant documentation relating to the affairs of the
interested parties and any other entities
in which the interested
parties have an interest, with a view of tracing the
property;
10.
The Registrar of Deeds is
directed to endorse the title deed of the immovable property
specified in paragraphs 1
supra,
with
the following restrictions, namely, that the property shall not,
without the consent of this
Court:-
10.1
be mortgaged or otherwise
encumbered;
10.2
be attached or sold in
execution;
or
10.3
vest in the Master of the
High Court, or the trustee or liquidator of the insolvent estate of
the owner, if the estate of the owner
should be sequestrated or
liquidated.
11.
The applicant shall in
terms of
section 39
of POCA, as soon as practicable after the
making of the Preservation Order, cause a notice of this order
including Annexure
"A" hereto, to be published in the
Government
Gazette.
12.
The applicant shall cause
notice of this Preservation Order together with the copies of the
papers used in support of this application,
to be served
on:
12.1
Kamal Vasram, […]
Shimbali Sands, residing at […]
N.
Road, Sunninghill, Johannesburg;
12.2
Soo Young Jeon, residing at
S. Drive, Sunningdale, Johannesburg;
12.3
Ronica Ragavan, residing at […] B. Street, Rooikruiskraal,
Centurion;
12.4
Vargafield (Pty) Ltd, 2012/101734/07 with registered place of
business
at 27 Voortrekker Road, Vrede, Free State;
12.5
Chandrama Prasad, residing at [….] V. Road, Vrede, Free State;
12.6
Linkway Trading (Pty) Ltd with registration number 2007/009012/07,
and registered
place of business at 1064 16
th
Road, Midrand, Gauteng;
12.7
Aerohaven Trading (Pty) Ltd with registration number 2008/014743/07,
and registered place of business at 106A 16
th
Road, Midrand, Gauteng;
12.8
MK Investments (Pty) Ltd whose registration number and registered
place of business is unknown.
12.9
Stanlib Bedford Gard with registration number unknown and registered
place of business at 17
Melrose Boulevard, Melrose Arch, Gauteng.
12.10
The Registrar of Deeds, Bloemfontein, 85 Nelson Mandela Road, Free
State;
12.11
Any other person who becomes known to the Applicant as having an
interest in the property.
ENTRY
OF APPEARANCE TO OPPOSE FORFEITURE ORDER
13.
Any person who has an interest in
the
property
and who intends:
13.1
to oppose the application for an order forfeiting
the
property
to the State; and
13.2
to apply for an order excluding his or her interest from the
forfeiture order in respect of
the
property;
13.3
must enter an appearance giving notice of such an intention in terms
of Section 39(3) of
POCA.
RM
14.
Any person under paragraph 13 above, who intends opposing an order
forfeiting
the property
to
the State shall, in terms of Section 39(4) of
POCA,
deliver a notice to the Applicant of such intention:
14.1
in the case of a person upon whom
service is effected
in terms of
POCA,
within
14 days after such service;
14.2
in the case of all other persons, within 14 days after the date upon
which notice of his order
is published in terms of paragraph 11
above.
15.
An appearance in terms of paragraph 13 above must, in terms of
Section 39(5) include full particulars of the address chosen
for the
delivery of documents concerning further proceedings in this matter,
and must be accompanied by an affidavit setting out:
15.1
full particulars of the opposing party's identity;
15.2
the nature of extent of his or her interest in the property; and
15.3
the basis of the defence upon which he or she intends to rely on in
opposing the forfeiture application
or in seeking to have his
interest excluded from the forfeiture order;
15.4
whether he or she admits or denies that the property concerned is an
instrumentality of an offence
referred to in Schedule 1 of
POCA,
and the basis for such defence.
APPLICATION
FOR RECONSIDERATION
16.
Any person who is affected by the order may on good cause shown,
apply for reconsideration. Such application shall be made:
16.1
in instances where the person is able to justify the application on
grounds of urgency, upon
3 days notice to the Applicant (or such
shorter period as the Court may determine on good cause shown);
16.2
in other instances, upon at least 7 days notice to the Applicant and
all other persons identified
in this order as being persons who may
have an interest in the property;
16.3
not later than 8 days after the person applying for reconsideration
becomes aware of the
existence of the order, or within such further
period as the court may consider reasonable, bearing in mind the
underlying principle
s of
POCA.
17.
Any person unsuccessfully opposing the Application shall pay
the costs occasioned by such opposition.
RM
18
The remaining extent of the farm Krynaauws Lust 275, district Vrede,
Free State Province, measuring: 4439,
5122 (four
thousand, four hundred and third nine comma five one two two
hactares).
BY
ORDER OF THIS COURT
COURT
REGISTRAR
STATE ATTORNEYS
RM
ANNEXURE
A TO COURT ORDER DATED 18 JANUARY 2018
1.
RECIPIENTS OF
PAYMENTS
1.
An amount of R40 360
154-98 which was paid to Estina Pty Ltd with registration number
2008/015033/07 with the following Standard
Bank of South Africa
account numbers [...] and First National Bnak account numbers […]
and further transferred into the
following bank accounts held
individually or by companies mentioned below or in any fund or
account held by or on behalf of them.:
1.1
KAMAL VASRAM - an amount
of
R4 023 721.28
paid
into the following FNB bank account: [...] - FNB […] abd
FNB
[…];
1.2
CHANDRAMA PRASAD - an
amount of
R465 264.16
whose bank account
details are currently unknown and who is foreign national with
passport number
[…];
1.3
VARGAFIELD (PTY) LTD
2012/101734/07 an amount of
R16
469 526.10
and is
currently under liquidation whose bank account details presently
unknown;
1.4
AEROHAVEN TRADING (PTY)
LTD 2008/014743/07 - an amount of
R73
277-24
whose bank
details are currently unknown;
1.5
MK INVESTMENTS (PTY) LTD
- an amount
R1 71
046.20
paid into the
following FNB Bank account number […] and whose registered
place of business is currently unknown;
1.6
LINKWAY TRADING (PTY) LTD
2007/009012/07 an amount
ofR157
320.00
paid
into
the
following NEDBANK account
[…];
1.7
STANLIB BEDFORD GARD - a
property financing company whose registration and banking details are
unknown an amount of Rl900
000-00
The immovable
and the movable property mentioned above are referred to as
"the
property".
RM
BY
ORDER OF THIS COURT
COURT
REGISTRAR
STATE ATTORNEYS
RM