REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 2024/089403
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED : NO
Judge Dippenaar
In the matter between:
RICHARD MASOANGANYE NO APPLICANT
and
NEDBANK LIMITED FIRST RESPONDENT
THE SHERIFF, SANDTON SOUTH SECOND RESPONDENT
THITUKA LUBILANJI PAUL THIRD RESPONDENT
TIMOTHY MAKWAMBA NGOY FOURTH RESPONDENT
MILENO TIMOTHEE NGOY FIFTH RESPONDENT
27 JANUARY 2025
Page 2
NGOIE GLOGLO GLORIA SIXTH RESPONDENT
CLAUDE BOKOMO BOKONDO SEVENTH RESPONDENT
MONGA EUSTACHE NUMBI EIGHTH RESPONDENT
NKULI JULIE KILUMBA NINTH RESPONDENT
FRANS EDWARD PRINS ROOTMAN TENTH RESPONDENT
THE NATIONAL DIRECTOR OF ELEVENTH RESPONDENT
PUBLIC PROSECUTIONS
JUDG MENT
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by e -mail and by uploading it onto the electronic
platform . The date and time for hand -down is deemed to be 10h00 on the
27th of JANUARY 2025.
DIPPENAAR J:
[1] This application concerns interim interdictory relief and a writ of execution under
r 45. The genesis of the application lies in a preservation order granted on 11 March 2024
under s 38 of the Prevention of Organised Crime Act (POCA) .1 In terms of the order, t he
applicant was appointed as curator bonis (‘curator’) and was authorised to assume control
of the assets which formed the subject matter of the preservation order and to ensure
their pres ervation. The present application concerns the interest on an amount of R35
million held at the first respondent (Nedbank) in an account in the name of the Defence
Office Democratic Republic of Congo (DRC) Embassy. In due course a forfeiture order
was gran ted on 21 June 2024 in terms of s 53 as read with s 48 of POCA . The order
forfeited the R35 million to the State and it was declared that its ownership vested in the
1 Act 121 of 1998.
Page 3
State as from the effective date of the forfeiture order. The forfeiture order did not
expressly include the interest derived from the capital amount.
[2] After the tenth respondent, Mr Rootman , became aware of the forfeiture order , the
second respondent, (the Sheriff ) at his behest served a warrant of execution and notice
of attachment in terms of r 45(8)(c) and 45(12) on Nedbank in terms whereof the movable
goods of the DRC were attached on 25 June 2024 (the first warrant) . The warrant was
based on a judgment obtained by the tenth respondent against the Governm ent of the
DRC on 2 September 2003 for payment of some US$ 11 224 744 million and
R122 569.89, together with interest and costs (the judgment) . Pursuant to a sale in
execution, the tenth respondent had only recovered an amount of R10 462 024.88.
[3] Pursuant to the granting of the forfeiture order, t he capital amount of R35 million
was transferred to the curator by Nedbank. It refused to transfer the interest component
as the forfeiture order did not expressly provide for it. On 15 July 2024, Nedbank paid the
interest component of R1 019 431.97 to the Sheriff in terms of the first warrant, without
informing the curator.
[4] Shortly thereafter, and on 16 July 2024 , the tenth respondent served a further
warrant of execution and warrant of attachment under r 45(12) o n the applicant in his
capacity as curator , which sought to attach and take into execution the property relating
to the preservation and forfeiture orders under his control (the second warrant) . The
warrant was similarly based on the judgment. On 1 August 2024, the tenth respondent
demanded payment of the interest held by the Sheriff , triggering the launching of the
interdict application by the applicant.
[5] The applicant, in his capacity as curator, sought interim interdictory relief
prohibiting the Sheriff from making payment of the monies held in custody, pending the
outcome of an application to be launched by the eleventh respondent (the NDPP), to vary
the existing forfeiture order to include the interest accrued on the capital amount of
R35 million, representing a forfeited cash component. The application was originally
Page 4
launched as an urgent application, but was postponed on 3 September 2024 by
agreement between the parties in terms of an order of Van Der Westhuizen J. In terms of
that order, the Sheriff was interdicted to make payment to the tenth respondent or any
other party pending the final determination of the matter. Costs were reserved.
[6] The NDPP delivered an affidavit in support of the application, setting out various
facts. It contended that the accrued interest constituted the proceeds of unlawful activities
as defined in s 1(1) of POCA. It adopted the stance that the accumulated interest must of
necessity form part of the proceeds of unlawful activities and that the interdictory relief
sought by the applicants was just and equitable and in the interests of justice. It further
contended that the curator had locus standi to launch the inter dict application as it was
intended to preserve the forfeited property.
[7] Only the tenth respondent actively opposed the application. The other respondents
did not actively participate in the proceedings. The first respondent and the third to
eleventh respo ndents were cited as interested parties in the application and no relief was
sought against them, save in the event of opposition.
[8] On 23 August 2024, Mr Rootman launched a counter application for an order to
compel compliance with the second warrant and t he garnishee notice under r 45(12). In
relevant part, he sought an order that:
‘The Respondent in his capacity as curator bonis appointed in terms of the forfeiture order
granted by this court on 21 June 2024 is ordered to give effect to the Applicant’s wr it of
execution issued on 9 July 2024 ’.
[9] Prior to the hearing of the application and on 31 October 2024 , a supplementary
affidavit was delivered by the curator setting out certain recent developments. The
forfeiture order had been published in Government Gazette no 51173 on 19 July 2024.
On 18 October 2024, the NDPP’s variation application of the forfeiture order was granted,
rendering the interest component part of the property forfeited to the State. In relevant
Page 5
part, the variation order, granted under r 42(1)(b), inserted the words ‘plus, interest
accrued thereon’ after the capital amount s referred to in subparagraph s 1.1 and 1.2 of
the forfeiture orde r. The latter pertained to the R35 million in the Nedbank account.
[10] Pursuant thereto, t he applicant on 23 October 2024, proposed to the tenth
respondent that the matter be removed from the opposed roll, with each party to pay its
own costs. The tenth respondent’s legal representatives in relevant part, replied the
following day :
‘Save for the question of cost s, we agree with you that the main application …has become
moot, following the variation order. Our client’s counter application is a live dispute . Our client
will ask the Court on 11 th November 2024 to determine whether the F orfeiture Order, can
validly defeat a judgment already issued by the court in favour of our client, and can the
Curator refuse to comply with the term of the warrant that has been served on him, in terms
of Uniform Rule 45 (12)(b) .’
[11] That elicited a long response from the applicant’s a ttorneys setting out the reasons
why their view of the remaining disputes differed from that of the tenth respondent and
why, in their view, the counter application could not succeed. The applicant defined the
relevant issue as “not whether the forfeiture order can defeat a judgment but rather, what
the legal effect of the preservation and forfeiture procedure under POCA has on the
attachment in execution by a judgment creditor’ .
[12] The tenth respondent elected not to deliver any supplementary affidavit in
response. Prior to the hearing, th e parties were directed to deliver supplementary heads
of argument pursuant to the developments of 18 October 2024. Both parties d id so.
[13] At the hearing, the tenth respondent persisted with the contention raised in the
main a pplication that the applicant lacked locus standi to have sought the interim relief
pending the application by the NDPP. That argument was persisted with in order to justify
an adverse costs order sought against the curator in his personal capacity . This result ed
Page 6
in both parties making submissions on the merits of the main application, despite the only
outstanding issue in the main application being that of costs.
[14] A determination of the issue of locus standi would have no precedentia l value in
circumstance s where the substantive relief has become academic.2 Moreover, by the
time the application was heard, the forfeiture order had been varied and the interest
placed under the control of the curator. Any debate about his locus standi also became
moot at that stage as the forfeiture order3 authorised the curator to take the necessary
steps to preserve the forfeited property under his control .
[15] Notwithstanding the variation order, the tenth respondent persisted in his
challenge, despite the entire basis for the argument having fallen away. In those
circumstances, the tenth respondent should be liable for the costs of the main application.
[16] I turn to the tenth respondent’s counter application . He argue d that it was to be
resolved on the basis of fact, not law. He submitted that the forfeiture order in paragraph
6.4 thereof, placed an obligation on the curator to deposit the cash and the balance of
sale proceeds of the fixed property into the nominated acc ount of the Embassy of the
DRC. It was submitted that there was no basis for the contention that the cash amounts
have been forfeited to the State as the forfeited property vests with it only until the
finalisation of the curatorship property and although DRC cannot enforce claim until
conclusion forfeiture process, the property has accrued to DRC. It was submitted that
consequently, the DRC’s entire right title and interests were executable and was payable
to the tenth respondent once the curatorship proce ss was finalised as the property and
proceeds have been forfeited to the DRC and not the State.
[17] The curator on the other hand submitted that such position was ill conceived and
has no basis in law as POCA does not provide for a forfeiture to any party other than the
2 MEC for Health, Gauteng v Dr Regan Solomons (1089/2023) [2024] 184 (30 December 2024) paras 30
to 33.
3 Paras 3 to 6.
Page 7
State. He submitted that there was n o claimable entitlement under r 45(12) (a) from the
curator as there was no debt a s envisaged by the rule which was owed to the DRC which
was capable of attachment. He submitted tha t the DRC has no claim against the curator
and w ould not be able to execu te payment pursuant to the forfeiture order.
[18] The counter application is squarely based on r 45(12) (b) as read with r 45(12)(a).
The tenth respondent sought a mandamus directing the c urator to comply with the second
warrant of attachment. The applicable principles are trite . A judgment creditor may in
terms of r 45(8) as read with r 45(12) attach an accruing debt. Debts owing to a judgment
debtor are executable and capable of being at tached and sold. The right must have
vested in the judgment debtor although the time for enforcement may not have arrived. 4
[19] The central issues are whether there is a debt and whether it has accrued to the
DRC.
[20] The aim of POCA is to recover assets that have been used to commit offences or
assets that are the proceeds of unlawful activity, for which purpose the Criminal Assets
Recovery Account (CARA) in the National Reven ue Fund was established under s 63 of
POCA. S 48 of POCA provides for a forfeiture of assets to the State. It does not provide
for a forfeiture of assets to a victim. Section 57 obliges the curator to deposit any monies
forfeited into that account, subject to any order for the exclusion of interest in forfeited
property under s 52(2)(a) or 54(8). The tenth respondent did not rely on any application
by him or the DRC or on order pertaining to the exclusion of any interest in the forfeited
property under s 52 or 52 of POCA.
[21] The forfeiture order in relevant part provides:
4 Ormerod v Deputy Sheriff Durban 1965 (4) SA 670(D).
Page 8
2 In terms of Sec tion 56(2) of the Act, ownership of the property shall vest in the State as f rom
the effective date of this order…
6 The curator bonis is authorised to:
6.3. Subject to any order of this Court for the exclusion of any interest in the property under
sectio n 52(2) of the Act, to deduct his fees and expenditure which were approved by the
Master of the High Court;
6.4 Deposit the cash amounts referred to in paragraphs 1.1 and 1.2 above as well as the
balance of the proceeds of the sale of the fixed property, after his approved fees has been
deducted, into the nominated bank account of the Embassy of the Democratic R epublic of
Congo.
8 Any person, whose interest in the property concerned is affected by the forfeiture order,
may, within 20 days after he or she has acquired knowledge of such order, set the matter
down for variation or rescission by the court.
9 Any person affected by the forfeiture order, and who was entitled to receive notice of the
application under section 48(2 ) of POCA but who did not receive such notice, may within 45
days after publication of the notice of the forfeiture order in the Gazette, a pply for an order
under section 54 of POCA, excluding his or her interest in the property, or varying the
operation of the order in respect of the property’.
[22] On a purposive, contextual and linguistic interpretation of the forfeiture order,5
paragraph 6.4 d oes no more than authorise the curator to pay the cash amounts after
deduction of the fees into the nominated account of the Embassy of the DRC. It does not
impose an obligation, without more, on him to do so and the terms of paragraph 6.4 are
not perempto ry. Nor does it of itself vest ownership of such funds in the DRC.
[23] Paragraph 6.4 cannot be viewed in isolation. It must be read together with
paragraph 2 of the order, which in express terms provides that ownership of the forfeited
5 HLB International (South Africa) (Pty) Ltd v Mwrk Accountants and Consultants (Pty) Ltd 2022 (5) SA
373 (SCA) paras 25 to 28.
Page 9
property vests in the S tate. The tenth respondent’s contention that the funds accrued to
the DRC, lack merit. The forfeiture order does not vest rights to the funds in the DRC.
[24] In terms of the forfeiture order, ownership of the capital funds vested in the State
with effect from 21 June 2024. Thus, by the time the second warrant of attachment was
served on 16 July 2024, ownership of the funds already vested in the State. The variation
order including the reference to the interest in the forfeiture order was not granted with
prospe ctive effect only. It amended the existing forfeiture order. By the time the
application was heard, ownership of all the funds, including the interest thus vested in the
curator on behalf of the State under s 56(2). Dominium of the monies had passed to th e
State which now own ed the assets exclusively and by operation of law.
[25] In terms of s 57(2) of POCA: ‘Any right or interest in forfeited property not
exercisable by or transferable to the State, shall expire and shall not revert to the person
who has poss ession, or was entitled to possession, of the property immediately before
the forfeiture order took effect’. Insofar as the second warrant was served prior to the
varied forfeiture order taking effect, it thus does not avail the tenth respondent.
[26] There was no evidence presented that either the DRC or the tenth respondent
availed themselves of the remedies provided in the order or under s 54 of POCA to seek
the exclusion of such funds form the operation of the forfeiture order. I am further not
persuaded tha t the provisions of s 30 avails the tenth respondent as there is no order in
existence granted under the section .
[27] For r 45 to apply, there must be a relationship of debtor and creditor between a
third party (the State represented by the curator) and the j udgment debtor (the DRC).
That is a prerequisite for attachment under the subrule. An accruing debt is a debt not yet
payable but a debt represented by an existing obligation. 6
6 Honey and Blankenberg v Law 1966 (2) SA 43 (SR) at 48A
Page 10
[28] The opening words of r 45(12)(a) provide: ‘Whenever it is brought to the knowledge
of the sheriff that there are debts which are subject to attachment, and are owing or
accruing from a third person to the judgment debtor …’. Those words define its param eters
and form the basis for the succeeding provisions . 7 For the provisions of the rule to apply,
there must be a relationship of debtor and creditor in existence between a third party and
the judgment debtor and a debt must be in existence .
[29] I agree with the curator that there is no existing obliga tion or debtor -creditor
relation ship between h im (as representative of the State) and the DRC. The assets cannot
be the subject matter of a debtor creditor relationship as between any parties. The assets
were no longer owned by the DRC, as judgment debtor, but by the State, There is thus
no debt payable or accruing from the curator to the DRC susceptible to attachment under
r45(12)(a). The forfeiture order does not give rise to a debt capable of such attachment .
The DRC has no claim against the curator and w ould not be able to execute pay ment
pursuant to the forfeiture order . The assets are not those of the curator nor can the curator
be said to be a debtor of the DRC. The property forfeited subject to the forfeiture order
cannot be said to be a debt owed by the State to the DRC.
[30] The provisions of r 45(12) thus do not avail the tenth respondent and he has not
established that he falls within the parameters of the rule. It follows that the tenth
respondent ’s counter application must fail. There is no basis to deviate from the normal
principle that c osts follow the result. Considering the complexities of the matter, costs on
Scale B would be appropriate.
[31] In the result, the following order is granted :
[1] The tenth respondent is directed to pay the costs of the main application on Scale
B;
7 Identiguard International (Pty) Ltd v Standard Bank of South Africa 2008 JDR 1519 (T) at 8H -9A.
Page 11
[2] The tenth respondent’s counter application is dismissed with costs on Scale B.
__ _______________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
HEARING
DATE OF HEARING : 11 NOVEMBER 2024
DATE OF JUDGMENT : 27 JANUARY 2025
APPEARANCES
APPLICANT’S COUNSEL : Adv. J.G. Smit
APPLICAN T’S ATTORNEYS : C J Brand Attorneys Inc.
TENTH RESPONDENT’S COUNSEL : Adv N Cassim SC
Adv TV Mabuda
TENTH RESPONDENT’S ATTORNEYS : Malatji & Co Attorneys