THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no : 756/2023
In the matter between:
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Appellant
and
HERMANUS JOHANNES VAUGH VICTOR N O
JOHANNA NINI MAHANYELE N O
CAROLINE MMAKGOKOLO LEDWABA N O
(jointly the First Respondent in their capacities
as the joint provisional liquidators of
Tariomix (Pty) Ltd (in liquidation)
Masters Ref No M000016/2023 First Respondent
DAM MOHASOA N O
T P MAMAHLODI -SOFE N O
(jointly the Second Respondent in their capacities
as the joint provisional trustees of the insolvent estate of
Louis Petrus Liebenberg)
Master’s Ref No T242/2025 Second Respondent
MPONYANA LAZARUS LEDWABA N O
SANDRA JOAN MC KENZIE N O
(jointly the Third respondent in their capacities
as the joint trustees of the insolvent estate of
Magdelena Petronella Kleynhans
Master’s Ref No T2485/2024 Third Respondent
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Neutral citation: The National Director of Public Prosecutions v Victor N O and
Others (Case no 756/2023 ) [2025 ] ZASCA 31 (31 March 2025 )
Coram: MBATHA, HUGHES, MEYER, MATOJANE and KOEN JJA
Heard: 20 March 2025
Delivered: 31 March 2025
Summary: Prevention of Organised Crime Act 121 of 1998 (POCA) – funds kept in
bank accounts of company and directors the proceeds of an unlawful investment
scheme and the instrumentality of certain offences – National Director of Public
Prosecutions ( NDPP ) having obtained preservation of funds order against company
and its directors in terms of s 38 of POCA – preservation order reversed on
reconsideration –appeal noted but lapsed – company placed under final winding -up –
NDPP and liquidators both seeking to exercise their powers in respect of disputed
funds – whether appeal should be reinstated .
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ORDER
On appeal from: Gauteng Division of the High C ourt, Pretoria (Mokose J, sitting as
court of first instance ):
The application for condonation and reinstatement of the appeal is dismissed with
costs, including those of two counsel.
JUDGMENT
Meyer JA (Mbatha, Hughes, Matojane and Koen JJA concurring) :
[1] This is an appeal against the order of the Gauteng Division of the High Court,
Pretoria, per Mokose J, dated 22 August 2022 (the high court), overturning a
preservation of property order granted by Davis J on 18 March 2021 in terms of s 38
of the Prevention of Organized Crime Act 21 of 1988 (POCA).1 The appeal is with
leave of the high court.
[2] On 5 March 2021, the Financial Intelligence Centre (FIC) issued a directive (the
directive) to ABSA Bank Limited (ABSA) and to Nedbank Limited (Nedbank) in terms
of the Financial Intelligence Centre Act 38 of 2001 (FICA) to freeze the funds that were
kept in the bank accounts held in the names of Tariomix (Pty) Ltd (Tariomix),2 Mr
Louis Petrus Liebenberg (Mr Liebenberg),3 and Ms M agdelena Petronella Kleynhans
(Ms Kleynhans)4 (jointly referred to as the respondents). The directive had a limited
1 Subsections 38(1) and (2) of POCA reads:
‘(1) The National Director may by way of an ex parte application apply to the 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.
(2) The High Court shall make an order referred to in subsection (1) if there are reasonable grounds
to believe that the property concerned -
(a) is an instrumentality of an offence referred to in Schedule 1;
(b) is the proceeds of unlawful activities; or
(c) is property associated with terrorist and related activities.’
2 Tariomix has since been liquidated and was substituted by its liquidators as the first respondent.
3 The estate of Mr Liebenberg has since been provisionally sequestrated and was at the hearing of this
appeal substituted by consent with its provisional trustees as the second respondent.
4 The estate of Ms Kleynhans has since been sequestrated and was at the hearing of this appeal
substituted by consent with its trustees as the third respondent.
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lifespan of 10 days expiring on 18 March 2021 , whereafter the funds would be freely
available for use by the respondents. Mr Liebenberg and Ms Kleynhans are the
directors of Tariomix.
[3] The appellant, the National Director of Public Prosecutions (the NDPP)
accordingly brought an ex parte application in terms of s 38 of POCA . It sought the
preservation of funds kept in certain bank accounts of the respondents . The basis of
the application was that the funds were the proceeds of unlawful activities or an
instrumentality of an offence.
[4] The grounds on which the NDPP relied were that Tariomix, Mr Liebenberg and
Ms Kleynhans operated a fraudulent investment scheme - a Ponzi scheme – relating
to diamonds in terms whereof innocent members of the public were duped and incited
to pay large funds to Tariomix as investors for the purchase and selling of alleged
diamonds. In reality, there w ere never any diamonds purchased, and the funds
invested by the general public were utilised by Mr Liebenberg and Ms Kleynhans for
their own gain and to the detriment of the investors and other creditors of Tariomix.
[5] On 18 March 2021, Davis J granted the preservation of property order on an ex
parte basis (the preservation order). On 19 April 2021, the respondents launched a
reconsideration application of the preservation order in terms of r ule 6(12) (c) of the
Uniform Rule s of Court.5 Having reconsidered the preservation order, the high court
set it aside with costs on 22 August 2022. In setting aside the preservation order, the
high court reasoned that the NDPP had failed to establish the requirements under s
38(2) of POCA for obtaini ng a preservation order. On 3 July 2023, it granted the NDPP
leave to appeal to this Court.
[6] In the meantime, on 23 February 2023, Tariomix was placed under provisional
winding -up by the North West Division of the High Court, Mafikeng, at the instance of
one of its major creditors, ABSA Bank Limited, whereafter joint provisional liquidators
were appointed during March 2023. Tariomix was placed under final winding -up during
April 2024. The estates of the directors of Tariomix were subsequently also
sequestrated and trustees were appointed to their insolvent estates.
5 Rule 6(12) (c) of the Uniform Rules of Court reads:
‘A person against whom an order was granted in such person’s absence in an urgent application may
by notice set down the matter for reconsideration of the order.’
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[7] In terms of r ule 8(1) of the Supreme Court Rules,6 the NDPP was obliged to
lodge with the registrar of this Court six copies of the record of the proceedings in the
court a quo on or before 3 November 2023. It did so only on 20 March 2024. The
appeal had accordingly lapsed. An application for condonation was thus required to
revive it.7 The NDPP lodged an application seeking condonation for the late filing of
the record of the proceedings; reinstatement of the appeal that had lapsed; and leave
to file its heads of argument within six weeks after the filing of the record of the
proceeding s. This application must be adjudicated before the appeal can be decided.
[8] Factors which usually weigh with this Court in considering an application for
condonation and reinstatement of a lapsed appeal are trite.8 They include a
reasonable and full explanation covering the entire period of the delay and the
prospects of success on the merits of the appeal. The explanation for the delay given
by the NDPP falls far short of a full, complete and satisfactory explanation. But as this
Court said in Valor IT v Premier, North West Province and Others9 ‘very weak
prospects of success may not offset a full, complete and satisfactory explanation for a
delay; while strong merits of success may excuse an inadequate explanation for the
delay (to a point).’ I, therefore, propose to first consider whether the NDPP has strong
merits of success that may trump its unsatisfactory explanation for the delay.
[9] Once the appeal had lapsed, the curator bonis appointed in terms of s 42(1) of
POCA10 paid the money in the account of Tariomix over to the liquidators of Tariomix.
6 Rule 8 of the Supreme Court Rules reads:
‘An appellant shall within three months of lodging of the notice of appeal lodge with the registrar six
copies of the record of the proceedings in the court a quo and deliver to each respondent such number
of copies as may be considered necessary or as may reasonably be requested by the respondent.’
7 Court v Standard Bank of Ltd; Court v Bester NO and Others 1995 (3) SA 123 (A) at 139F -H.
8 See, for example, Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development
Company Ltd and Others [2013] ZASCA 5; [2013] All SA 251 (SCA) paras 11 -15; Miles Plant Hire v
Commissioner SARS [2015] ZASCA 98 paras 12 -13.
9 Valor IT v Premier, North West Province and Others [2020] ZASCA 62 (SCA); [2020] 3 All SA 397
(SCA); 2021 (1) SA 42 (SCA) para 38.
10 Section 42(1) of POCA reads:
(1) Where a High Court has made a preservation of property order, the High Court shall, if it deems it
appropriate, at the time of the making of the order or at a later time -
(a) appoint a curator bonis to do, subject to the directions of that High Court, any one or more of the
following on behalf of the person against whom the preservation of property order has been made,
namely -
(i) to assume control over the property;
(ii) to take care of the said property;
(iii) to administer the said property and to do any act necessary for that purpose; 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; and
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The funds are currently kept by the liquidators and are administered for the benefit of
the creditors of Tariomix to be applied in accordance with the provisions of the
Insolvency Act 24 of 1936.
[10] The facts relating to the unlawful scheme are largely common cause between
the liquidators and the NDPP. The liquidators argue that they are best suited to deal
with the funds forming the subject of the preservation order . That will allow the
investors to prove claims against the insolvent estate of Tariomix and to allow the m to
be paid a dividend of the moneys lawfully owed to them in accordance with the
insolvency law. The NDPP, on the other hand, persists in its claim that the preservation
order should b e reinstated until the forfeiture proceedings are disposed of.
[11] I subscribe to the views expressed b y Keightley J in Prinsloo N.O. and Others
v NDPP and Others .11 There , the NDPP also obtained an order to preserve the funds
obtained by a company which duped investors into paying funds to the company,
which had also conducted an unlawful investment scheme. That c ompany was also
placed under final winding -up. The liquidators also laid claim to the funds forming the
subject of the preservation order. On that aspect of the case Keightley J concluded:12
‘I conclude that there is no good reason to deprive the investors of their ordinary rights to
pursue their claims through the winding -up process in this case. To retain the disputed funds
under restraint would amount to an arbitrary deprivation of their pr operty rights. It would not
serve a proper public purpose in that it would place unnecessary hurdles in the path of the
ongoing winding -up process, which had already commenced by the time the restraint order
was granted.’
[12] A preservation order is the precursor to an application for the forfeiture of the
property preserved as provided for in Chapter 6 of POCA. The preservation order that
was granted ex parte was not revived by the noting of the appeal to this Court.13 The
forfeiture application thus also lapsed. The investors have a legitimate claim against
the initially preserved funds, and rely on the liquidators, through the exercise of their
(b) order any person holding property subject to the preservation of property order to surrender
forthwith, or within such period as that Court may determine, any such property into the custody of
the curator bonis .
11 Prinsloo N.O. and Others v NDPP and Others ((Case No. 7907/ 2020) An unreported judgment of the
Gauteng Division of the High Court , Johannesburg , dated 10 December 2020 (Prinsloo N.O.) .
12 Ibid para 80.
13 National Director of Public Prosecutions v Rautenbach and Others [2004] ZASCA 102; [2005] 1 All
SA 412 (SCA); 2005 (4) SA 603 (SCA) paras 12 -13.
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statutory powers, to effect a distribution of the funds. These rights are protected under
s 25(1) of the Con stitution14 from arbitrary deprivation.
[13] The NDPP argues that not all investors in the unlawful investment scheme were
innocent members of the public . In support of this argument it relies on a conclusion
of fact to that effect in its founding affidavit . No primary facts , on which the conclusion
could be founded, were however alleged . No particulars of the identity or identities of
the particular investor or investors or the grounds on which acts of turpitude had been
given . The remarks o f Miller J in Hart v Pinetown Drive -in Cinema (Pty) Ltd15 are
pertinent:
’Where proceedings are brought by way of application, the petition is not the equivalent of the
declaration in proceedings by way of action. What might be sufficient in a declaration to foil an
exception, would not necessarily, in a petition, be sufficient to resist an objection that a case
has not been adequ ately made out. The petition takes the place not only of the declaration but
also of the essential evidence which would be led at a trial and if there are absent from the
petition such facts as would be necessary for determination of the issue in the petitioner's
favour, an objection that it does not support the relief claimed is sound. ’
[14] Nevertheless , the NDPP may object to the claims of investors (creditors)
against the insolvent estate of Tariomix at the meetings of creditors held in terms of
the provisions of the Insolvency Act16 if it believes the investor was complicit in the
unlawful investment scheme . It may object to the liquidators’ account at any time
before its confirmation by the Master .17 If the NDPP is aggrie ved by a decision, ruling
or order of the Master or officer presiding at a meeting of creditors , it may bring it under
review by the court.18 It may also invoke the provisions of POCA in respect of any
specific payment that may accrue to an investor, if it can establish a factual basis that
the particular investor was complicit in the unlawful scheme.
14 Section 25 (1) of the Constit ution of the Repub lic of South Africa rea ds:
‘No one may be deprived of property except in terms of law of general application, and no law may
permit arbitrary deprivation of property.’
15 Hart v Pinetown Drive -in Cinema (Pty) Ltd 1972(1) SA 464 (D & CLD) at 469 C - E.
16 Insolvency Act 24 of 1936.
17 Section 111(1) of the Insolvency Act.
18 Section 151 of the Inso lvency Act.
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[15] The NDPP, therefore , has not established any prospects of success , let alone
strong prospects of success in the appeal , that might otherwise have trumped its
unsatisfactory explanation for the delay .
[16] In the result, the following order is made:
The application for condonation and reinstatement of the appeal is dismissed with
costs, including those of two counsel .
________________________
P.A. MEYER
JUDGE OF APPEAL
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Appearances
For appellant : DP Skosana SC with S Jozana
Instructed by: State Attorney , Pretoria
State Attorney , Bloemfontein
For first respondent : J Hersh enson SC with R Leeuw
Instructed by: Strydom Rabie Inc , Pretoria
Symington & De Kok Inc ,
Bloemfontein
For second and third respondent s: P Lourens
Instructed by: F.J. Senekal Inc ., Bloemfontein