THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 626/2005
Reportable
In the matter between
NGENGELEZI ZACCHEUS
MNGOMEZULU FIRST APPELLANT
NONTANDO MNGOMEZULU SECOND APPELLANT
AND
THEODOR WILHELM VAN DEN
HEEVER N.O. FIRST RESPONDENT
NATIONAL DIRECTOR OF
PUBLIC PRESECUTIONS SECOND RESPONDENT
Coram: HOWIE P, ZULMAN, CAMERON, MTHIYANE JJA
THERON AJA
Heard: 9 November 2006
Delivered: 29 November 2006
Summary: Restraint order in terms of ch 5 of prevention of Organised Crime A ct 121 of 1998 –
the meaning of surrender as used in s 28(1)(b) – whether residential home subject to surrender
Neutral citation: This case may be cited as Mngomezulu v Van den Heever [2006]
SCA 149 (RSA)
JUDGMENT
_____________________________________________________________
THERON AJA
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1] On 17 September 2004 the sec ond respondent (the NDPP) sought and
obtained an ex parte provisional restraint order in the Johannesburg High
Court (Willis J) against the appellant s in terms of the Prevention of
Organised Crime Act, 121 of 1998 (POCA). The restra int order related to
realisable property as defined in s 14 of the Act1 and included the appellants’
residential home (the immovable property).
[2] In terms of the restraint orde r the first respondent was appointed
curator bonis of the appellants’ assets subject to the restraint order. He was
authorised to take possession, control, care of and administer the property
specified in the order. The appe llants were ordered to surrender 2 the
specified property, including the immovable property, to the curator bonis.3
1 Section 14 provides: ‘1) Subject to the provisions of subsection (2), the following property shall be
realisable in terms of this Chapter, namely--
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.
2) Property shall not be realisable property if a declaration of forfeiture is in force in respect thereof.
2 Para 1.21 of the Order reads: ‘The Defendant and Respondents are hereby ordered in terms of section
28(1)(b) of the Act to surrender all the property into the custody of the curator bonis forthwith after the
curator bonis has identified himself by displaying a copy of this Order.’
3 Clothing, bedding, ordinary household furniture, kitchen and laundry appliances, utensils, and other
articles (other than luxuries) as the curator bonis considered to be reasonably needed for the day to day use
of the appellants, although bound to be disclosed and restrained, were excluded from surrender.
`` 3
[3] On 21 September 2004, and immedi ately upon being served with the
restraint order, the first appellant left custody and control of all the assets,
including the immovable property, to the curator bonis . I deal below with
the question of ‘surrender’. On 23 September 2004 the first appellant
consulted with his legal representatives and instructed them to take all
necessary steps ‘to protect [his] intere sts in this matter’. An exchange of
correspondence followed between the attorneys acting on behalf of the
appellants and those acting for the curator bonis. In a letter dated 1 October
2004, addressed to the appe llants’ attorneys, the curator bonis
acknowledged the appellants’ right to occupy the immovable property but
refused to allow them to do so until agreement had been reached on various
issues relating to the property .
[4] The appellants’ response, penned by their attorneys, was that it was
not necessary for them to meet with the curator bonis before being allowed
to reoccupy the immovable property. They were only prepared to meet with
the curator bonis in order to discuss ‘how you [ curator bonis] are going to
fulfill your obligations as curator bonis’.
`` 4
[5] In a letter dated 5 October 2004, addressed to the appellants’
attorneys, the curator bonis stated:
‘You are kindly requested to note that I have gone on record to state that I have no
difficulty in allowing your clients to occupy the property. However, due to the history of
the matter and more specifically the fact that it would appear that the property has been
extensively vandalized prior to our attachment of the property, I do require a meeting in
order to discuss this and related issues with your client.’
[6] In a further letter dated 6 October 2004, the curator bonis recorded
that he had, since 22 September 2004 sought a meeting with the appellants
and that he wished to be ‘satisfied’ on a number of matters relating to the
immovable property, before he could properly exercise the discretion
conferred upon him in terms of para 1.26 of the restraint order.4
[7] Later that same day, 6 Octobe r 2004, the appellants launched an
urgent application in the cour t of first instance, seeking, inter alia , a
declarator that they were entitled to occupy the immovable property pending
finalisation of the proceedings institut ed against them. Claasen J held that
the attempts by the curator bonis to place conditions on the appellants’ re-
4 Para 1.26 of the order reads: ‘The curator bonis shall have the discretion to release any of the property
back into the custody of the person who held such property, under such conditions as the curator bonis
deems appropriate for the proper administration and preservation thereof, and subject to the curator bonis:
1.26.1 Retaining sufficient control over such property; and
1.26.2 Ensuring the preservation of the value and/or physical state of such property.’
`` 5
occupation of the property went beyond the statutory duty imposed on him
to take control of the assets and secure their preservation. This view was to a
large extent informed by the acknowledgment on the part the curator bonis
that the appellants had a right to occupy the residential property.
[8] The full court of the Witwatersrand Local Division, ( per Joffe J
(Malan and Snyders JJ concurring)), uphe ld an appeal, concluding that the
word ‘surrender’, as used in the restraint order, encompassed the transfer of
possession of the immovable property to the curator bonis. The full court
further held that the curator bonis had a discretion in te rms of para 1.26 of
the restraint order to release the propert y to the appellants. According to the
judgment of the full court the curator bonis was ‘entitled to impose [such]
conditions as he deems fit … subject to his retaining control over the
property and ensuring the preservation of the value and/or physical state of
the dwelling’. The appellants are before us with the special leave of this
court.
[9] Chapter 5 of POCA provides for th e confiscation of benefits derived
from unlawful activities but its confis cation machinery only comes into
`` 6
operation when the ‘defendant’5 is convicted of an offence. The provisions
create a procedure whereby assets are pl aced under a restraint order, either
where a confiscation order has been granted or in anticipation of the granting
of such an order. The circumstances in which a restraint order may be
granted are set out in s 25(1) 6 of POCA. A restraint order such as the one
granted in this matter ‘has the effect of temporarily depriving a person of
property so as to preserve the propert y in anticipation of an order being
sought for its forfeiture.’7 In terms of s 28(1), 8 a High Court, in addition to
the power to grant a restraint order, is also vested with the power to appoint
5 This is the terminology used in POCA to refer to a person against whom a restraint order is sought and
made.
6 Section 25(1) provides: ‘A High Court may exercise the powers conferred on it by section 26 (1)
a) when--
i) a prosecution for an offence has been instituted against the defendant concerned;
ii) either a confiscation order has been made against that defendant or it appears to the
court that there are reasonable grounds for believing that a confiscation order may be
made against that defendant; and
iii) the proceedings against that defendant have not been concluded; or
b) when--
i) that court is satisfied that a person is to be charged with an offence; and
ii) it appears to the court that there are reasonable grounds for believing that a
confiscation order may be made against such person.’
7 Unreported judgment National Director of Public Prosecutions v Van Staden [2006] SCA 135 para 3.
See also National Director of Public Prosecutions v Kyriacou 2004 (1) SA 379 (SCA) para 5.
8 Section 28(1) reads: ‘ Where a High Court has made a restraint order, that court may at any time--
a) appoint a curator bonis to do, subject to the directions of that court, any one or more of the
following on behalf of the person against whom the restraint order has been made, namely--
i) to perform any particular act in respect of any of or all the property to which the
restraint order relates;
ii) to take care of the said property;
iii) to administer the said property; and
iv) where the said property is a business or undertaking, to carry on, with due regard to
any law which may be applicable, the business or undertaking;
b) order the person against whom the restraint order has been made to surrender forthwith, or
within such period as that court may determine, any property in respect of which a curator
bonis has been appointed under paragraph (a), into the custody of that curator bonis.’
`` 7
a curator bonis and to order that the proper ty under restraint be surrendered
into the custody of the curator bonis.
[10] The primary argument advanced on be half of the appellants is that the
order of the full court amounted in effect to an order of eviction. The various
further ancillary submissions advanced were that: the appellants had a right
in terms of s 26(3) 9 of the Constitution not to be arbitrarily evicted from
their home without an order of court, which order is to be made after the
court has considered all the relevant circumstances ; and that eviction had
occurred without compliance with the pr ovisions of s 4(1) of the Prevention
of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998
(PIE).10
[11] This case, however, is not about ev iction. The first appellant states, in
his affidavit, that the curator bonis ‘was not entitled to evict the second
[appellant] and I from the re sidential home’. In so stating the appellants
misstated the factual and legal position. On the affidavits, the curator bonis
did not evict the appellants from the im movable property. The first appellant
9 Section 26(3) reads: ‘No one may be evicted from their home, or have their home demolished, without an
order of court made after considering all the relevant circumstances. No legislation may permit arbitrary
evictions.’
10 Section 4(1) reads: ‘Notwithstanding anything to the contrary contained in any law or the common law,
the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction
of an unlawful occupier.’
`` 8
voluntarily surrendered all the restrained assets to the curator bonis when
the restraint order was served upon him. 11 No allegation is made that the
‘surrender’ was other than voluntary. On the contrary, the affidavits suggest
that the first appellant left to avoi d the media. In consequence of such
surrender, possession of the property passed to the curator bonis . On the
facts, therefore, it follows that none of those submissions avail the
appellants. In addition it is plain that the present circumstances do not fall
within the ambit of PIE.
[12] Surrender of immovable property as envisaged in s 28(1)(b) of POCA
would ordinarily require the person in occupation of such property to hand
over possession of the property to the curator bonis. This court in National
Director of Public Prosecutions v Phillips, 12 stated that ‘in the absence of an
order in terms of s 28(1)(b), the impact of the restraint order, certainly in
cases of immovable property, would in most cases be minimal’ and there
would be no reason, in such a case, why the ‘defendant’ could not continue
to live on the property.
11 The first appellant unequivocally states that he ‘surrendered all property into the custody and control of
the first respondent and thereafter left the residential home.’
12 2005 (5) SA 265 (SCA) para 15. A further appeal to the Constitutional Court was dismissed – Phillips
and others v National Director of Public Prosecutions 2006 (1) SA 505 (CC).
`` 9
[13] A ‘defendant’ against whom a re straint order has been granted has
various remedies in terms of POCA. Th e appellants chose not to make out a
case for the setting aside or variation of the restraint order on the grounds
contemplated in ss 26(10)(a) 13, 28(2)14 or 28(3) 15 of POCA. The appellants
sought instead to make out their case on the basis that they have an absolute
right, as owners, to occupy the immova ble property and that the immovable
property is excluded from the surrender provisions of the restraint order. The
case made out by the appellants is misc onceived. The restraint order has not
been challenged. Absent a challenge, that order remains extant. We do not
have to decide whether, in the fa ce of opposition from a householder, the
order in such terms woul d require surrender of th e home, since here there
was no opposition, and no suggestion on th e appellants’ own version of any
13 Section 26(10)(a) reads: ‘A High Court which made a restraint order--
a) may on application by a person affected by that order vary or rescind the restraint order or an
order authorising the seizure of the property concerned or other ancillary order if it is
satisfied--
i) that the operation of the order concerned will deprive the applicant of the means to
provide for his or her reasonable living expenses and cause undue hardship for the
applicant; and
ii) that the hardship that the applicant will suffer as a result of the order outweighs the risk that
the property concerned may be destroyed, lost, damaged, concealed or transferred.’
14 Section 28 (2) reads: ‘Any person affected by an order contemplated in subsection (1)(b) may at any
time apply--
a) for the variation or rescission of the order; or
b) for the variation of the terms of the appointment of the curator bonis concerned or for the
discharge of that curator bonis.’
discharge of that curator bonis.’
15 Section 28(3) reads: ‘The High Court which made an order contemplated in subsection (1)(b)--
a) may at any time--
i) vary or rescind the order; or
ii) vary the terms of the appointment of the curator bonis concerned or discharge that
curator bonis;
b) shall rescind the order and discharge the curator bonis …’
`` 10
constraint in their vacating of the property. It is therefore not necessary to
decide this matter on the basis propounded by the full court.
[14] On the facts, the appellants’ right to occupy the immovable property is
in dispute only to the extent that the curator bonis contends that this right is
subject to his retaining sufficient cont rol over the property and ensuring the
preservation of the value of the property. The inquiry thus turns to the
reasonableness of the curator bonis’ conduct in seeking to impose
conditions as a precondition to the appellants’ reoccupation of the
immovable property. The question, put differently, is whether the conditions
sought to be imposed constitute a denial of that right. It is worth noting that
the curator bonis had not, before the appella nts’ urgent application, in fact
imposed any conditions.
[15] In his answering affidavit the curator bonis sets out the issues he
wished to discuss and reach agreem ent on with the appellants. These
include:
• Drawing up an inventory of all m ovable assets on and within the
immovable property, recording their condition and value.
• Undertakings regarding the maintenance of the immovable property.
`` 11
• The bond repayments, if applicable.
• Payment of municipal charges such as rates and taxes.
• Security of the immovable property in the absence of the appellants.
• Who would occupy the immovable property.
• Access arrangements for the curator bonis and his representatives in
order to inspect the property.
[16] The curator bonis also draws attention to th e fact that it appeared to
him, when the restraint order was se rved on 21 September 2004, that the
appellants had been in the process of removing and had in fact removed
items from the immovable property. It is common cause that valuable assets,
such as paintings and persian rugs (valued at approximately R500 000) had
been removed from the immovable property. The curator bonis alleges that
the first appellant’s initial explana tion, given on 21 September 2004, was
that the second appellant had sold the items ‘on the street’. In an affidavit
made in compliance with para 1.3116 of the restraint order, the first appellant
stated that in consequence of his arre st on 4 July 2004, it became necessary
for him to generate funds for the purpos e of paying bail as well as his legal
expenses. To this end the paintings an d persian rugs were pawned for the
16 The appellants were required, in terms of para 1.31 of the Order, to, disclose, on affidavit, a description
and the whereabouts of, inter alia, all restrained property.
`` 12
sum of R250 000. Whether the property wa s pawned or sold is immaterial,
either eventuality demonstrates that the concern of the curator bonis over the
possible dissipation of the movable assets was justified.
[17] For the curator bonis to have released the immovable property to the
appellants without satisfying himself ab out the issues in para [15] above,
would have constituted a dereliction of his duties. First, in terms of the
restraint order the curator bonis is specifically authorised ‘to take care of the
[restrained] property’.17 Second, the curator bonis is required to prepare a
report recording, inter alia, a description and valuation of all the property he
had taken possession or control of. 18 Third, the discretion which the curator
bonis has in terms of para 1.2619 of the order must be exercised subject to his
‘retaining sufficient control over the property’ and ‘ensuring the preservation
of the value’ of the property.
[18] In my view, the conditions which the curator bonis sought to impose
do not appear unreasonable. The conditions were intended to serve a
legitimate objective, namely, the pres ervation of the property. This was a
pivotal responsibility of the curator bonis and the very purpose for which
17 Para 1.9 of the Order.
18 Para 1.18.1 of the Order.
19 Above fn 4.
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the restraint order had been granted. In the circumstances, the conduct of the
curator bonis in seeking to impose cond itions on the appellants’ re-
occupation of the immovable property was not unreasonable. A challenge to
the content of the conditions is at this stage premature.
[19] For these reasons the following order is made:
The appeal is dismissed with costs.
______________
LV THERON
Acting Judge of Appeal
CONCUR:
HOWIE P
ZULMAN JA
CAMERON JA
MTHIYANE JA