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2024
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[2024] ZAGPPHC 609
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National Director of Public Prosecutions v Joubert and Others (2023-028928) [2024] ZAGPPHC 609 (12 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number: 2023-028928
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE:12
June 2024
SIGNATURE
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
And
LORETTE
JOUBERT
1
st
Defendant
KISHENE
CHETTY
2
nd
Defendant
KRISHNA
CHETTY
3
rd
Defendant
MARICHA
JOUBERT
4
th
Defendant
KUMARASEN
PRITHIVIRAJ
5
th
Defendant
VOLAN
PRITHIVIRAJ
6
th
Defendant
RAMAHLAPI
JOHANNES MOKWENA
7
th
Defendant
JAMES
RAMANJALUM
8
th
Defendant
JABEZ
NAIDOO
9
th
Defendant
LESETJA
DAVID MOGOTLANE
10
th
Defendant
THOMAS
DUMASI MARIMA
11
th
Defendant
VEERAN
NAIPAL
12
th
Defendant
ALPHEUS
NKOSIBAKHE MAKHETHA
13
th
Defendant
MARCEL
DUAN PATRICK MARNEY
14
th
Defendant
JACOBA
MAGDELENA HAVENGA
15
th
Defendant
KYSAMULA
MORRIS MABASA
16
th
Defendant
WILLEM
JOHANNES JANSEN
17
th
Defendant
HARRY
MKHULU MILANZI
18
th
Defendant
RUDOLPH
JOHANNES JACOBUS SMIT
19
th
Defendant
MARNA
LEANA BORNMAN
20
th
Defendant
MODIKWA
BRENDA TSEBENHLANE
21
st
Defendant
PRINESH
NAIDOO
22
nd
Defendant
ANDRÉ
SIMPSON
23
rd
Defendant
ZUZETTE
MAGRIETA SPANG
24
th
Defendant
MALUMISIS
ABEL MAFHOHO
25
th
Defendant
RUMILA
VADIVALOO NAIDOO (PILLAY)
26
th
Defendant
ROSINA
MILANZI
27
th
Defendant
ABIGAYLE
ABNER
ESAU
28
th
Defendant
SALAMINA
KHOZA
29
th
Defendant
LETHABO
MABORE MAMABOLO
30
th
Defendant
SCHALK
WILLEM COETZEE
31
st
Defendant
LINDA
LUBANYANA
32
nd
Defendant
ZELDA
FUHRI BOTHA
33
rd
Defendant
PIETER
JOHANNES JACOBS
34
th
Defendant
MAMOHUBA
HELEN MODIBA
35
th
Defendant
TSHEPO
EDWIN MODIKWE
36
th
Defendant
FAMANDA
SAMSON MASHELE
37
th
Defendant
JOSEPH
MONYOKO
38
th
Defendant
LAWRENCE
PHEELO THAHANE
39
th
Defendant
ANNA
CATHARINA ELIZABETH DU PREEZ
40
th
Defendant
PRAGALATHAN
GOUNDEN
41
st
Defendant
TSHEPHO
ANDREW MASHEGO
42
nd
Defendant
RAVIN
RAMLALL
43
rd
Defendant
HANISHA
CHETTY
44
th
Defendant
JANE
MTHEMBU
45
th
Defendant
SERANG
TRADING (PTY) LTD (2016/504428/07)
(AS
REPRESENTED BY THE 2
ND
DEFENDANT)
46
th
Defendant
ARGAN
AUTOMOTIVE MECHANICAL INNOVATION AND
TOWING
SOLUTIONS (PTY) LTD (2016/504428/07)
(AS
REPRESENTED BY THE 6
TH
DEFENDANT)
47
th
Defendant
BLUE
VOICE CONSULTING AND PROJECTS CC
(2011/018413/23)
(AS
REPRESENTED BY THE 27
TH
DEFENDANT)
48
th
Defendant
BAMBANANI
MARKETING AND PROJECTS
(2009/206512/23)
(AS
REPRESENTED BY THE 2
ND
DEFENDANT)
49
th
Defendant
BAROMA
CONSTRUCTION AND OFFICE
50
th
Defendant
CONSUMABLES
(PTY) LTD (2012/059965/07)
(AS
REPRESENTED BY THE 18
TH
DEFENDANT)
BAJATWALA
DISTRIBUTORS (PTY) LTD (2017/359724/07)
(AS
REPRESENTED BY THE 43
RD
DEFENDANT)
51
st
Defendant
CICADA
AUTO ENGINEERING AND MECHANICAL
SOLUTIONS
(PTY) LTD (2016/504477/07)
(AS
REPRESENTED BY THE 32
ND
DEFENDANT)
52
nd
Defendant
COUNTERPOINT
TRADING CC (2002/049187/23)
(AS
REPRESENTED BY THE 3
RD
DEFENDANT)
53
rd
Defendant
DITORO
TRADING CC (2004/033581/23)
(AS
REPRESENTED BY THE 22
ND
DEFENDANT)
54
th
Defendant
EMETHONJENI
FURNITURE AND PROJECTS (PTY)
LTD
(2012/059956/07)
(AS
REPRESENTED BY THE 18
TH
DEFENDANT)
55
th
Defendant
GAUTOOLS
(PTY) LTD (2012/177517/07)
(AS
REPRESENTED BY THE 1
ST
DEFENDANT)
56
th
Defendant
IMPOKANE
GENERAL TRADE AND DISTRIBUTION
(PTY)
LTD (2017/249446/07)
(AS
REPRESENTED BY THE 1
ST
DEFENDANT)
57
th
Defendant
IMBOBEZI
ENTERPRISES (PTY) LTD (2017/356800/07)
(AS
REPRESENTED BY THE 22
ND
DEFENDANT)
58
th
Defendant
ISASALETHU
CONSTRUCTION AND OFFICE
CONSUMABLES
(PTY) LTD (2012/060132/07)
(AS
REPRESENTED BY THE 29
TH
DEFENDANT)
59
th
Defendant
ISIMBALI
TRADING AND PROJECTS (PTY) LTD
(2012/061888/07)
(AS
REPRESENTED BY THE 18
TH
DEFENDANT)
60
th
Defendant
KLIPFONTEIN
LEDWABAS GENERAL DEALERS CC
(2003/013811/23)
(AS
REPRESENTED BY THE 26
TH
DEFENDANT)
61
st
Defendant
KGOTHO
TRADING ENTERPRISE (PTY) LTD
(2011/004261/07)
(AS
REPRESENTED BY THE 5
TH
DEFENDANT)
62
nd
Defendant
MAFUTA
MARKETING SOLUTIONS CC
(2005/0550065/23)
(AS
REPRESENTED BY THE 44
TH
DEFENDANT)
63
rd
Defendant
MPAPADI
TRADING CC (2006/073470/23)
(AS
REPRESENTED BY THE 3
RD
DEFENDANT)
64
th
Defendant
SEMI
BUILD 303 CC (2002/068769/23)
(AS
REPRESENTED BY THE 2
ND
DEFENDANT)
65
th
Defendant
SIFIKILE
FURNITURE AND PROJECTS (PTY) LTD
(2012/059968/07)
(AS
REPRESENTED BY THE 29
TH
DEFENDANT)
66
th
Defendant
SIYANGOBA
TRADING AND PROJECTS (PTY) LTD
(2012/061892/07)
(AS
REPRESENTED BY THE 3
RD
DEFENDANT)
67
th
Defendant
SUPER
STATIONERY DISTRIBUTORS CC
(2005/014625/23)
(AS
REPRESENTED BY THE 5
TH
DEFENDANT)
68
th
Defendant
THANDEKA
RMT MARKETING SOLUTIONS CC
(2007/221864/23)
(AS
REPRESENTED BY THE 27
TH
DEFENDANT)
69
th
Defendant
UMBANATIE
TRADING AND PROJECTS (PTY) LTD
(2009/153030/07)
(AS
REPRESENTED BY THE 5
TH
DEFENDANT)
70
th
Defendant
VATIKA
TRADING AND PROJECTS (PTY) LTD
(2014/052777/07)
(AS
REPRESENTED BY THE 1
ST
DEFENDANT)
71
st
Defendant
KISHENE
CHETY N.O. (IN HIS CAPACITY AS JOINT
TRUSTEE
OF THE CHETTY FAMILYTRUST)
IT
000066/2016(G)
1
st
Respondent
HANISHA
CHETTY N.O. (IN HER CAPACITY AS
JOINT
TRUSTEE OF THE CHETTY FAMILYTRUST)
IT
000066/2016(G)
2
nd
Respondent
LAHITA
CHETTY
3
rd
Respondent
VASANTHI
PRITHVIRAJ
4
th
Respondent
SIBONGILE
NOSIPHO MOGOTLANE
5
th
Respondent
SUSARA
NAIPAL
6
th
Respondent
MARGARET
FULUFHELO MAFHOHO
7
th
Respondent
THABISO
SETSEAKOBO WALTER MPHAHLELE
8
th
Respondent
RIAAN
BOTHA
9
th
Respondent
ALETTA
ELIZABETH JACOBS
10
th
Respondent
SEJABATI
CYNTHIA MODIKWE
11
th
Respondent
O’
NIEL PERUMAL
12
th
Respondent
REASONS FOR JUDGMENT
LESO,
AJ
:
[1]
This matter was heard in the urgent court wherein the
3rd, 53rd and
64th Defendants filed an urgent anticipatory application to
anticipate the return date for the purpose of discharging
or varying
the provisional order granted in favour of the NDPP on 28 May 2023.
[2]
The respondents brought an urgent application after the
NDPP obtained
an order in an
ex parte
application for a provisional
restraint against dealing with the assets of the defendants and the
respondents and the order to
disclose and surrender such property
pending further order of this court and in terms of
section 26
of the
Prevention of Organised Crime Act 121 of 1998
as amended.
[3]
In the circumstances the court made the following order:
1.
That the
rule nisi
with return date 11 July 2023 be
anticipated on 19 June 2023.
2.
That the provisional order granted by this Honourable Court on 28
April
2023 made against the Third, Fifty Third and Sixty Fourth
Defendants be discharged and set aside.
3.
That the applicant be ordered to pay the costs of this application on
a
scale as between attorney and client.
Order
on urgency
[4]
The provisional court order in terms of POCA was granted
on 28 April
2023 with the return date of 11 July 2023. The defendant and the
respondents were allowed to oppose the confirmation
of the
provisional order on the return date. The defendants were allowed to
make an application to anticipate the return date for
the purpose of
discharging or varying the provisional order on less than 24 hours'
notice of such application to the applicant.
[5]
The applicant opposes the anticipation of the return
date on the
basis that no urgency has been shown to exist and has filed and
served a Replying Affidavit/Answering Affidavit for
the matter to be
struck off the roll and be dealt with on 11 July 2023. The NDPP
conceded to having become aware of the defendant's
intention to file
an application to anticipate the return date on 1 June 2023. The main
opposition on urgency lies in the NDPP’s
complaint relating to
the fact that the defendants failed to file their opposition on 19
May 2023 and the prejudice it suffered
by not being able to prepare
the replying affidavit.
[6]
I was
persuaded by the applicant's submission that the applicant cannot be
afforded substantial redress at a hearing in due course
because they
are not parties to the proceedings on 11 July 2023 which the NDPP did
not dispute.
Having considered the reasons for
non-compliance given by the defendants, the grounds for opposition by
the NDPP and the nature
of the application, the court was inclined to
hear the application.
Merits
[7]
The court exercised its discretion and permitted the
filing of the
answering affidavit by the NDPP which was filed in the course of the
hearing of the application. The merit
of this matter was mainly
based on the provisions of Rule 6(8) of the Uniform Rules of the High
Court and the non-disclosure or
failure to put all facts before the
court in the
ex parte
application for POCA which I will deal
with later. Rule 6 of the Uniform Rules provides as follows:
Rule
6
“
(8)
Any person against whom an order is granted ex parte may anticipate
the return day upon delivery of not less than twenty-four
hours’
notice.”
[8]
The submission made by Counsel for the defendants after
the NDPP
filed the answering affidavit changed the complexion of the
defendants’ case. The non-disclosure or failure to put
all
facts before the court in the
ex parte
application in the POCA
application was the highlight of the case. The NDPP’s response
was that the
ex parte
provisions were carefully invoked
because adequate good cause or reason has been shown for such an
adopted procedure. I considered
all the affidavits filed by the NDPP
and the oral submissions by the counsel representing the NDPP that
the restrained papers constitute
the evidence in the applicant's case
in which it is expected to make out a proper case that there are
reasonable grounds to believe
that the defendants face prosecution,
may be convicted and a confiscation order may be granted. That
applicant is not expected
to prove the actual guilt of the 3
rd
,
53
rd
and 64
th
defendants beyond reasonable
doubt. Most of the NDPP’s argument was centered around the
allegations of unlawful activities
and the pending criminal cases(s)
faced by the 3
rd
, 53
rd
, and 64
th
defendants. There was no explanation tendered as to why certain
information or facts were not disclosed in the
ex parte
application.
[9]
The
proposition by the NDPP that the history of the arrest and the
striking off of the criminal case from the roll did not entitle
the
applicant to issue a Provisional Restraint Order because such history
is irrelevant and misplaced. It is not for the NDPP to
decide which
information is good for the ears of the court if the information is
readily available at the time of the
ex
parte
application. The nature of the proceeding compels the
applicants to disclose fully and honestly to the court, particularly
because the order was granted in the absence of the other parties and
considering the principle of the
audi
alteram partem
rule which is embedded in our legal system. The principle on ex parte
applications was set out in
Pretoria
Portland Cement Co Ltd v Competition Commission
[1]
,
where the court held that “
a
n
ex parte application by its very nature
places
only one side of a case before the court and requires the utmost good
faith on the part of the applicant”
.
[10]
The
legal principle in
ex
parte
applications is that applicants in
ex
parte
applications have a duty to be completely transparent and honest with
the court. Any breach of this duty could lead to the dismissal
of the
application or adverse cost orders, emphasising the importance of
maintaining utmost good faith throughout the process.
Similarly in
Estate
Logie v Priest
[2]
,
the court held that “
failure
to make full disclosure of all known material facts (that is, facts
that might reasonably influence a court to come to a
decision) may
lead the court to refuse the application or to set aside the ruling
easily on that ground alone, quite apart from
considerations of
wilfulness or mala fides”
.
[11]
I found that the non-disclosure of the outcome of the criminal
proceedings
against the defendant is material facts that should have
been placed before the court so that the court can be able exercise
discretion
on whether or not to grant the restrained order. There is
no good reason why the NDPP failed to disclose such information.
[12]
The Order discharging the Provisional Restrained Order granted by
this Court
on 28 April 2023 made against the 3
rd
, 53
rd
and 64
th
defendants was granted based on the NDPP’s
failure to disclose other facts during
ex parte
application.
[13]
The Order for extension of rule nisi was granted on the basis that
there was
an agreement on the extension of the return date by the
parties during the urgent application.
Cost
Order
[14]
The court awarded a costs order having exercised its discretion and
the general
rule that the successful party is entitled to costs of
costs follows suit.
JT LESO
ACTING JUDGE OF THE
HIGH COURT
Delivered:
the reasons for the judgment were prepared and authored by the judge
whose name is reflected herein and is handed down
electronically and
by circulation to the parties/their legal representatives, by email
and by uploading it to the electronic file
of this matter on
Caselines.
DATE
OF HEARING: 19 June
2023
DATE
OF JUDGMENT: 19 June 2023
APPEARANCES
Counsel
for the Applicant:
Adv J
Wilson
Instructing
Attorney:
Mr
Kgaphola, State Attorney Pretoria
316
Thabo Sehume Street
PRETORIA
Tel:
(012) 309 1677
Email:
Kkgaphola@justice.gov.za
or
CISibiya@npa.gov.za
Ref
Mr Kgaphola/2023/AFU/PTA
Counsel
for the 3
rd
, 53
rd
And
64
th
defendants:
Adv
NGD Maritz SC and Adv WJ Botha
Instructing
Attorneys:
Heckroodt
and Associates Attorneys
369
Polaris Avenue
Waterkloof
PRETORIA
Tel:
(012) 940 3555
Email:
hannah@heckroodtlegal.com
Ref:
P HECKROODT/CHETTY003
Counsel
for the Curator:
Adv D
Marais
Instructing
Attorneys:
Kern
& Partners
Tel:
(011) 643 4020
Email:
clive@kernlaw.co.za
Ref:
Mr C Kern
[1]
See
Pretoria
Portland Cement Co Ltd v Competition Commission
2003 (2) SA 385
(SCA) para 45; Trakman v Livishirtz
1995 (1) SA 282
(A) 288.
[2]
See
Estate
Logie v Priest
1926 AD 312
at 323; National Bank of SA Ltd
2001 (3) SA 705
(SCA) at
717 and Zuma v National Director of Public Prosecutions
2009
(1) SA 1
(CC).