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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

CASE NO: 2023 -132147
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
11 MARCH 2025

In the matter between:
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant
and
EDWIN THABO LETHOPA First Respondent
BROUGH CAPITAL (PTY) LTD Second Respondent
ZIPPYKIND PARTNER (PTY) LTD Third Respondent
VERTEX LEGAL (PTY) LTD Fourth Respondent
CRABY SYSTEMS (PTY) LTD Fifth Respondent
GNEDCCI INSTITUTE (PTY) LTD Sixth Respondent
FUR GROUP (PTY) LTD Seventh Respondent
SUPERSTAR BETS (PTY) LTD Eighth Respondent
HOLISTIC SUPERBET SHARED SERVICE (PTY) LTD Ninth Respondent
1111 HOLDINGS (PTY) LTD Tenth Respondent
EDWIN THABO LETOPA (PTY) LTD Eleventh Respondent
CELEBRYT INTERNATIONAL (PTY) LTD Twelfth Respondent
NTC CAPITAL (PTY) LTD Thirteenth Respondent
NTC GLOBAL TRADE FUND (PTY) LTD Fourteenth Respondent
ET BATAUNG (PTY) LTD Fifteenth Respondent
THABO LETOPA (PTY) LTD Sixteenth Respondent
ARBITRAWALLET (PTY) LTD Seventeenth Respondent
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NTC PROPERTY INVESTMENT (PTY) LTD Eighteenth Respondent
K2023806767 (SOUTH AFRICA) (PTY) LTD Nineteenth Respondent
THE KOULEHAE SACCO TRUST
(IT002956/2022) Twentieth Respondent
VENTEL MANAGEMENT (PTY) LTD Twenty -First Respondent
ARBITRAWALLET (PTY) LTD Twenty -Second Respondent
BATEE TOURS (PTY) LTD Twenty -Third Respondent
VENTEL PROPERTY (PTY) LTD Twenty -Fourth Respondent
MIDDELVLEI TENACRES PROPERTIES (PTY) LTD Twenty -Fifth Respondent
LODE YETHEMBE MINING (PTY) LTD Twenty -Sixth Respondent
THE BATAUNG LEMATHIYANE
FAMILY TRUST (IT002297/2012) Twenty -Seventh Respondent
ZIPPYKIND PARTNER (PTY) LTD Twenty -Eighth Respondent
MPHO NGOZWANE Twenty -Ninth Respondent

Summary: Civil procedure – application for forfeiture of preserved assets in terms of
section 48(1) of POCA – whether preserved property comprising bank accounts are
instrumentality of an offence and funds held therein are instruments of offences and
thus susceptible to an order for forfeiture in terms of section 50(1) of the Prevention
of Organised Crime Act 121 of 1998 – whether the application constitutes an abuse
of process warranting a punitive cost order against the National Director of Public
Prosecutions – when it is, courts should not hesitate to deprecate such abuse to
vindicate violated constitutionally entrenched property rights.

JUDGMENT

MODIBA J:
Introduction
[1] Orders for civil forfeiture provided for in section 50(1) of the Prevention of
Organized Crime Act1 (POCA) are a laudable mechanism for prevent ing
perpetrators of crime from benefitting from their ill -gotten gains . However, such
orders have a draconian effect on those who have an interest in forfeited property

1 Act 121 of 1998.
3

because t hey are only alerted that the property in which they have an interest has
been judicially attached when a preservation order is served or when they read
about it in the Government Gazatte (if they ever get to read the publication). This
is so particularly because in the most cases, POCA forfeiture orders are
preceded by an application for preservation of property targeted for forfeiture,
granted ex parte and in camera.

[2] Orders for forfeiture are also granted on a lower quantum of proof than that
applicable in criminal cases and without respondents being charged or even convicted of a criminal offence. Yet, they do not only deprive respondents of their
property, but they also visit upon them the stigma of criminal wrongdoing ,
effectively revers ing the constitutionally e ntrenched presumption of innocence .
They may also constitute arbitrary deprivation of property. Therefore, orders for
forfeiture inflict substantial prejudice.

[3] Although there are safeguards provided for in POCA and given meaning by our
courts when interpreting its provisions , preservation and forfeiture applications
can be used as a weapon in terrorem . Where they are so used, courts should not
hesitate to deprecate such abuse.

[4] The NDPP sought [on 12 December 2023] and was granted an order [the
following day] preserving the funds held in the bank accounts that appear in
schedule A to the notice of motion dated 27 March 2024 (the preserved assets)
on the basis that the bank accounts are an instrumentality of an offence and the cash held therein are instruments of offences referred to in schedule 1 of POCA
namely, fraud and money laundering. Most of the respondents are the account
holders. The first respondent, Thabo Edwin Letopa (Mr Letopa) is central to the NDPP’s case against the respondents. It is common cause that he controls the
4

entities that are cited as the respondents. The fourteenth respondent NTC Global
Trade Fund (Pty) Ltd (NTC) is equally central to the NDPP’s case because she
alleges that deposits Mr Letopa took from members of the public were paid into a
bank account held in its name.

[5] The South African Reserve Bank ( SARB) had placed a soft block on the
respondent s’ ban accounts. It was due to lapse on 13 December 2023. This is
what prompted the NPA to apply for the preservation order on an urgent basis.

[6] A liquidation application against NTC is pending. The NDPP intends consider ing
claims submitted by its creditors, including claimant who are victims of crime s
allegedly committed by NTC when the preserved funds have been forfeited to the state.

[7] It is largely on the same basis the NDPP obtained a preservation order that she
seeks an order for the forfeiture of the preserved assets. She specifically relie s
on the following grounds:

(a) non-compliance with section 7(1) of the F inancial Advisory and Intermediary
Services Act
2 (FAIS Act) by Mr Letopa and NTC ;
(b) non-compliance with the South African Reserve Bank ( SARB) foreign
exchange regulations by Mr Letopa and the implicated entities ;
(c) operati on of a Ponzi scheme by Mr Letopa and the implicated entities .

[8] In this judgment, unless otherwise specified, all references to statutory provisions
are to the FAIS Act.


2 Act 37 of 2002.
5

[9] The respondents deny all the above allegations. They contend that the forfeiture
application is nothing but a rehash of the allegations in the preservation application. The NDPP fails to establish the allegations. Even if she had established the allegations , they [the allegations ] do not sustain the grounds on
which the NDPP relies. Therefore, the respondents further contend, the NDPP
has failed to make out a case for forfeiture.

[10] Before I consider the grounds on which the NDPP seeks an order for forfeiture as
well as the respondents ’ basis for opposition, it is appropriate that I elaborate on
the NDPP’s allegations . Thereafter, I determine the NDPP’s points in limine and
outline the applicable legal principles. Lastly , I determine the question of costs.

The NDPP’s allegations
[11] The NDPP alleges that the National Prosecuting Authority’s
3 (NPA) Asset
Forfeiture Unit (AFU) s investigated the affairs of the respondents after the
National Consumer Council (NCC) received a tipoff from an anonymous caller, alerting it that Mr Letopa operates a website with the following
URL https://trade.momentumsecurities.co.za (the website). The website mimics
that of the well -known Momentum financial services entity (Momentum) .
Consumers are lured to invest th rough the website under the belief that they are
investing with Momentum while in fact, they are paying money into banking
accounts owned or controlled by Mr Letopa. Mr Letopa owns multiple companies.
In some of these companies he is a sole director. He masquerades as a financial service provider through these companies, taking deposits from the public in contravention of the law.


3 An organ of state which is responsible for public prosecutions and for matters incidental to instituting
criminal proceedings, headed by the NDPP (Section 179 of the Constitution).
6

[12] AFU solicited assistance from the Financial Sector Conduct Authority (FSCA) to
investigate the affairs of Mr Letopa. Wendy Serfontein ( Ms Serfontein) of the
FSCA conducted the investigat ion and made the following findings:

(a) on 10 July 2014, Mr Letopa applied to be granted a license as an authorised
financial services provider (FSP). On 25 September 2014, the application was
rejected because he did not meet the fit and proper requirements set out in
the FAIS Act ;
(b) on 15 November 2023, Ms Serfontein conducted a search on the FSCA
records and found that Mr Letopa is not an authorised FSP or a
representative of an FSP. She also found that NTC is not and was never an
authorised FSP ;

[13] AFU requested SARB to investigate whether Mr Letopa’s companies were
authorised to offer financial services to members of the public. The scope of the SARB investigation included all cross -border transactions in the name of Mr
Letopa, other individuals and/or his entities for the period 01 November 2022 to 17 November 2023. SARB decision to put a soft block on bank accounts
associated with Mr Letopa followed this investigation.

[14] The FSCA has made the following further findings on which the N DPP relies in
the forfeiture application. Upon investigating persons and entities referenced in Ms Serfontein’s report, she [Ms Serfontein] found that:

(a) Willie Marius Venter ( Mr Venter) is linked to two companies that lodged
applications for FSP licences o n 30 November 2023. The first is the
seventeenth respondent, Arbitrawallet (Pty) Ltd (Arbitrawallet). The second is
Coin Link (Pty) Ltd (Coin Link) . Coin Link is not party to these proceedings. Mr
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Venter is a 33.3% shareholder in Arbitrawallet and a director in Coin Link. He
provided the e- mail address m [...]@arbitrawallet.net [presumably to FSCA] ;
(b) Mr Venter was previously linked to Transferme (Pty) Ltd, an authorised FSP,
as a representative until 1 March 2023;
(c) Sakhile Matsimela was linked as a director and 33.3% shareholder in
Arbitrawallet. Matsimela provided the e- mail address s[...]@voxitrade.com ,
linking him to Voxitrade Exchange Inc (Voxitrade);
(d) Voxitrade Exchange Inc, Index Venture Partners (Pty) Ltd (Index Venture) and
Outsource Compliance Services (Pty) Ltd (OCS) were authorized as FSPs. It
is unclear from the founding affidavit how Index Venture and OCS are linked to the respondents. Apart from Arbitrawallet, these entities are not cited in
these proceedings.

[15] AFU also requested the Financial Intelligence Centre (FIC) to investigate Mr
Letopa. A bald averment is made in the founding affidavit that the FIC report
pointed out that Mr Letopa was involved in unlawful activities. The particulars of
such activities are not set out. Since the NDPP does not specifically rely on the
findings of the FIC in the same way she relies on the FCSA and SARB findings ,
which she particularised in her founding affidavit, I entertain the FIC bald finding
no further in this judgment.

[16] It is against the background set out above that the N DPP alleges that:

(a) Mr Letopa contravened section 7(1) which prohibits acting or offering to act as
an FSP without an FSP licence issued in terms of section 8. Section 7(1) also
prohibits acting as a representative of an FSP without being appointed as a
representative of an authorised FSP in terms of section 13;
8

(b) Mr Letopa contravened SARB Regulations, with specific reference to the
Exchange Control R egulation (ECR) 2(4)(a) and/or 2(2(4)(b) read with ECR 22 in
that:
(i) his inward funds were reported under the incorrect category and/or the
funds were used for another purpose;
(ii) the website of Arbitrawallet advertised that it traded in "... buying,
selling and exchanging Foreign currency including US dollars ” and also “offers
investment opportunities in foreign currency and crypto arbitrage". Abitrawallet
is not authorised to buy, sell and exchange foreign currency ;
(c) from the evidence gathered, it can be safely accepted that there are
reasonable grounds to believe that Mr Letopa and his multiple companies
committed fraud and money laundering.

The NDPP’s points in limine
[17] The NDPP has attacked the respondents’ opposition on the following points in
limine.
(a) NTC is not authorised to oppose this application;
(b) a confirmatory affidavit was not filed on behalf of the 29th respondent;
(c) the respondents did not seek condonation for the late filing of their section 39
notice.

[18] The respondents thrift ed through all these points in limine. Their opposition is
unassailable.
Alleged lack of authority to oppose the application on behalf of NTC
[19] The NDPP contends that NTC is not authorised to oppose this application either
because it has been placed in business rescue or liquidation proceedings are
pending against it. Therefore, the NDPP further contends, if it is in business
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rescue, then its business rescue practitioner ought to have deposed to an
affidavit on its behalf and not Mr Letopa.

[20] The NDPP raises two conflated issues ; namely, the authority to depose to an
affidavit and the authority to oppose the application. Conflated as the two issues
are, the complaint based on any of them is unsustainable and falls to be
dismissed.

[21] The NDPP failed to follow the procedure set out in uniform rule 7(1) to impugn Letopa’s authority to oppose this application on behalf of NTC. Letopa did not need to be authorised to depose to an affidavit on behalf of NTC. It is sufficient that he has personal knowledge of the facts on which NTC relies.
No confirmatory affidavit deposed to by the twenty ninth respondent
[22] The respondents undertook to deliver a confirmatory affidavit on behalf of the twenty ninth respondent. They subsequently duly delivered it. Therefore, the point
in limine that a confirmatory affidavit has not been filed by the twenty ninth
respondent has been purged.

No condonation for the section 39 notice
[23] The NDPP contends that the respondents failed to deliver a notice in terms of
section 39(4)(a) of POCA within 14 days of service of the order but instead waited
for publication of the order in the Government Gazette, which the NDPP contends
is not applicable to them. The NDPP contends that the respondents had to apply for condonation for the late filing of their notice but failed to do so.

[24] The respondents deny this. They correctly contend that they could not have been expected to deliver a notice in terms of s 39(4)(a) of POCA within 14 days of
service of the preservation order as such service did not occur. The NDPP put up no proof that the preservation order was duly served on them.


[25] The respondents delivered their s ection 39(5) notice on 4 March 2024 in
accordance with s ection 39(4)(b) of POCA , being within 14 days after the date
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upon which the NDPP published notice in the Government G azette. I therefore
find that , the respondents complied with s ection 39 of POCA. In any event, the
NDPP did not set aside the respondents’ section 39 notice as an irregular
proceeding. It is apparent from the papers filed that the NDPP investigated the
respondents’ version as set out in the notice. Subsequent to that investigation, it instituted the forfeiture application. The forfeiture application is fully ventilated and
ready for hearing. The NDPP’s success in this application does not lie in merely
attacking the section 39 notice as she seeks to do. Even if she did, the
respondents’ answering affidavit has been filed and until it too has not been set
aside as an irregular step. Therefore, this court ought to have regard to it ,
particularly because the respondents’ constitutional right s to be presumed
innocent and not to be arbitrarily deprived of their property is implicated.


Applicable legal principles
[26] The applicable legal principles are elaborately set out in the respondents’ heads
of argument. The NDPP took no issue with them.

[27] Chapter 6 of POCA provides for civil forfeiture of property . When she seeks an
order for forfeiture of preserved assets, the NDPP is required to bring an application in terms of s ection 48(1) by giving 14 days’ notice of the application to
persons who filed a section 39(3) notice after being served with a preservation
order or in the case of non- parties, after the preservation order was published in
the Government Gazette . In terms of section 48(4)(a), such persons may inter
alia, oppose the application. In terms of section 50(1) of POCA, the court will
grant the forfeiture order if it finds on a balance of probabilities that the preserved
property is an instrumentality of an offence referred to in schedule 1.

[28] When confronted with applications for forfeiture, courts have grappled with the contours of the powers they derive from section 50(1) of POCA. They have observed that a forfeiture order is a unique remedy used to combat organised
crime. It is not punitive but remedial. Its purpose is to remove the incentive for crime and not to punish the offender.
4 It rests on the legal fiction that the property

4 National Director of Public Prosecutions v Mohamed NO 2002 (4) SA 843 (CC) par 15.
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and not the person with an interest in the property has contravened the law.
Hence, charging that person or securing his or her criminal conviction is not a
prerequisite for the granting of a forfeiture order.

[29] Courts have consistently observed that orders for civil forfeiture are draconian
because they allow forfeiture of property on the basis that it is an instrumentality
of a criminal offence, without the owner being charged or convicted and; the quantum of proof is lower than that applicable in criminal proceedings. Therefore, casting the net too wide may result in arbitrary deprivation of property thus seriously encroaching into entrenched constitutional rights and yielding an unjust outcome.
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[30] Although section 50(1) is couched in peremptory terms, to stifle its potentially
draconian effect by ensuring that an order for civil forfeiture does not result in arbitrary deprivation of property, courts have resorted to the standard of
proportionality. A court seized with an application in terms of section 48(1) of POCA is required to strike a balance between the laudable societal quest to combat organised crime on the one hand, and unwarranted interference with
individual rights to property on the other. Forfeiture orders must be weighed
against the purpose they serve.
6

[31] The approach to determining whether a proper case is made for an order for
forfeiture to be granted has become trite. It is as follows:
(a) first, it must be established that the preserved property is an instrumentality of
an offence;

5 Prophet v National Director of Public Prosecutions at paragraph [38] .
6 Prophet footnote 6 at paragraph [123] to [127].
12

(b) then, a proportionality enquiry is embarked upon to weigh the severity of the
interference with individual rights to property against the extent to which the
property was used to commit a criminal offence, bearing in mind the nature of the implicated offence.

[32] In Mahomed, the court held that when determining whether preserved assets are
an instrumentality of an offence and thus liable to civil forfeiture, the following
questions should be asked - whether the implicated offence is a crime that:
(a) renders conventional criminal penalties inadequate;
(b) requires extraordinary measures for its detection, prosecution and prevention;
(c) warrants the extraordinary measures akin to those appropriate to
organised crime as envisaged in POCA ;
(d) has some rational link, however tenuous, with racketeering, money laundering and criminal gang activities .

[33] Negative answers to these questions would be an important indication that
forfeiture may be disproportionate.
7 An additional consideration in the
proportionality analysis is whether the crime in relation to which the property was used is subject to asset forfeiture provisions. If it is, it is a relevant and important factor whether subjecting the property to forfeiture under POCA would be
redundant or doubly punitive. Furthermore, forfeiture must be rationally
connected to the purpose of chapter 6 of POCA. T here must be a reasonably
direct link between the property subject to forfeiture and the crime committed. Further, the property must play a reasonably direct role in the commission of the offence.
8


7 Mahomed at paragraph [124 -126].
8 National Director of Public Prosecutions v Seevnarayan 2004 (2) SACR 208 (SCA) par 44.
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[34] The purpose of POCA, is to supplement criminal remedies in appropriate cases
and not to merely serve as a convenient substitute. Therefore, having perpetrators of crime criminally charg ed and sentenced should be the first resort
in combating crime.
9

[35] In terms of section 37 (2) of POCA, factual disputes stand to be resolved according to the seminal Plascon Evans rule.
10

[36] The NDPP must make out her case in her founding affidavit i n such a way that
the respondents are informed of the case to meet .11 This is not a technical
requirement, when a party is facing the prospects of being deprived of their
property without being convicted of a criminal offence, a case the respondent is required to answer must be clearly set out.
12

Whether the NDPP makes out a case for forfeiture

Non-compliance with the FAIS Act
[37] The NDPP alleges that Mr Letopa and his companies have contravened section
7(1). This provision provides as follows:
“(1) …a person may not act or offer to act as a-
(a) financial services provider, unless such person has been issued with a
licence under section 8; or

9 National Director of Public Prosecutions v Van Staden 2007 (1) SACR 338 (SCA) par 7; National Director
of Public Prosecutions v Kleinbooi [2008] 2 All SA 455 (C) 463C, 464F .
10 Plascon -Evans Paints L td v V an R iebeeck Paints (Pty) L td 1984 (3) SA 623 (A ) at 634E - 635C. See also
National Director of Public Prosecutions v Braun 2009 (6) SA 501 (WCC) par 38; National Director of Public
Prosecutions v Bosch 2009 (2) SACR 547 (KZD) par 30
11 Janse van Rensburg v The National Director of Public Prosecutions 2007 JDR 0177 (SCA) par 23 -24
12 National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd; National Director of Public
Prosecutions v 37 Gillespie Street Durban (Pty) Ltd; National Director of Public Prosecutions v
Seevnarayan 2004 (2) SACR 208 (SCA) par 44.
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(b) a representative, unless such person has been appointed as a
representative of an authorised financial services provider under section 13.”

[46] Section 1 defines an FSP as any person, other than a representative, who as a
regular feature of the business of such person furnishes advice, or furnishes advice and renders any intermediary service, or renders an intermediary service.

[47] Section 1 d efines an intermediary service as:

“… subject to subsection (3) (b), any act other than the furnishing of advice,
performed by a person for or on behalf of a client or product supplier -
(a) the result of which is that a client may enter into, offers to enter into or enters
into any transaction in respect of a financial product with a product supplier; or
(b) with a view to-
(i) buying, selling or otherwise dealing in (whether on a discretionary or non -
discretionary basis), managing, administering, keeping in safe custody, maintaining
or servicing a financial product purchased by a client from a product supplier or in
which the client has invested;
(ii) collecting or accounting for premiums or other moneys payable by the client to
a product supplier in respect of a financial product; or
(iii) receiving, submitting or processing the claims of a client against a product
supplier;”

[48] In terms of section 1(2) , a financial product excludes any financial product
exempted from the provisions of the FAIS Act by the registrar by notice in
the Government Gazette, taking into consideration the extent to which the
rendering of financial services in respect of the product is regulated by any other
law.

[49] The NDPP obtained a preservation order based on the allegations set out earlier in this judgment. While the allegations were found to have established a basis for
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the preservation order to be granted, they are insufficient to sustain a forfeiture
order for reasons set out below.

[50] It is common cause that except for the second respondent Brough Capital (Pty)
Ltd, the respondents are not authorised FSPs or representatives of FSPs. The mere fact that Letopa is not a registered FSP does not constitute non- compliance
with section 7(1) . The allegation that Letopa misrepresented that he is a FSP is
not established. The allegation was made by an anonymous caller to the NCC.
All that the NDPP established, based on the evidence by Ms Serfontein is that Mr
Letopa and NTC are not a registered FS P or authorised representatives . The fact
that Mr Letopa and NTC are not registered FSP s does not sustain a finding that
they misrepresented to members of the public that they are so authorised. Not a
single affidavit by a person to which he made such a misrepresentation was filed.

[51] Further, the NDPP has not put up any evidence to establish that Mr Letopa, or
any of the respondents operated the website or received payments from the website. The allegation also emanates from the report by an anonymous caller to
the NCC. The NDPP has therefore failed to prove that Mr Letopa and the NTC
lured members of the public to make deposits into bank accounts of companies controlled by him on the gui se that they were investing with Moment um.

[52] The respondents’ version is that NTC raises capital by issuing debentures which a debenture holder acquires for a fixed cost through the Arbitrawallet platform, Arbitrawallet.net subject to the applicable terms and conditions. D ebenture
holders earn 1% interest per annum on the value of the debentures held. NTC
does not use the amounts paid by later debenture holders to repay earlier debenture holders. It uses funds raised `by issuing debentures to trade in
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cryptocurrencies through a separate legal entity and to invest in various other
business endeavours. Profits generated are paid as an additional return to debenture holders based on the value of the debentures that they hold. A debenture holder is entitled to sell their debentures back to the NTC in
accordance with the terms of the debenture agreement.

[53] I accept the respondents’ version based on the Plascon Evans rule. Nonetheless,
the NDPP’s case suffers from the following serious impediments:

(a) the NDPP is required to make out its case in its founding affidavit so that it is clear what case the respondents are required to meet. There, it makes out no case that Letopa and the companies controlled by him issued debentures in contravention of section 7(1) .
(b) Since the NDPP’s case is not based on the issuing of debentures, it may not rely on the respondents’ version to establish a case for forfeiture. The respondents set out their version in their section 39(3) notice. Notwithstanding that the NDPP enjoyed more than 90 days prior to bringing this application to investigate whether the issuing of
debentures by the respondents constitutes breach of section 7 (1) read
with the definitions of financial product and intermediary service in section 1(1) and 1(2) of FA IS Act, it persists with the allegations that
led to the granting of the preservation order without proof of such allegations but more importantly, without investigating whether the respondents’ business activities constitute non- compliance with the
FAIS Act.
(c) The fact that the respondents were not called to answer to a case based on the issuing of debentures simply means that they have not been afforded an opportunity to rely on any defences that are available
to them, such as that provided for in section 1(2) . It could well be that
17

the issuing of debentures falls within exempted financial products in
terms of section 1(2) . It is not for this court to conjure up a case for the
NDPP.
(d) contravention of section 7(1) is not an offence referred to in schedule 1
of POCA

Alleged non- compliance with Exchange Control Regulations
[54] The respondents correctly contend that the NDPP has provided no evidence to establish that they have contravened ECR 2(4)(a) and/or 2(2)(4)(b) read with
ECR 22 [of the SARB Exchange Control Regulations ]. The high- water mark of
her case is a screenshot of the Arbitrawallet website advertising that it traded in “… buying, selling and exchanging Foreign currency including US dollars ”, which
she asserts constitutes a contravention of the SARB e xchange control
regulations. The respondents’ version that Arbitrawallet has never bought, sold,
or exchanged foreign currency, including US dollars and that its website reflects an earlier idea for the Arbitrawallet business which it never pursued for various commercial reasons is not far-fetched that this court is unable to reasonably
accept it.


Alleged Ponzi scheme
[55] The Ponzi scheme allegations are also not established. The NDPP has not
furnished any evidence to prove that any of t he respondents use funds from later
debenture holders to repay earlier debenture holders.

[56] Mr Letopa alleges that the business model and the use of irredeemable profit -
sharing debentures has been patented. He furnished NDPP with financial
statements of NTC for the year ended 31 August 2023, which reflect that the company has total equity and liabilities of R91 516 519. Its bank statement
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reflects that it holds a bank account in its own name and makes regular payments
to debenture holders.

[57] The respondents have provided a detailed account of their business activities which the NDPP does not dispute. Their version is as follows: NTC is a property
holding company. Its approved financial statements for the year ended 31 August 2023 reflects that it has total equity and liabilities of R26 912 420. It acquires immovable properties which it owns, rents, or sells to generate a profit. It owns a commercial property in Centurion that it acquired for R4 million and a residential development in Vosloorus that it acquired for
R12 million. It made an offer to acquire a residential development in
Southdale for R6 million. The offer fell through because of the preservation
order.
(b) Middelvlei Tenacres is a property development company . Its approved
financial statements for the year ended 31 August 2023 reflect that the
company has total equity and liabilities of R7 622 779. It develops properties owned by NTC Property.
(c) Arbitrawallet acquired Brough on 7 September 2023 for R1 250 000. Brough
is a pension fund and asset manager. It holds a FAIS FSP licence . It
generates revenue by earning fees associated with providing these services to its clients.
(d) Lode Yethembe Mining is a Wibank -based coal mining company. It has a
prospecting right and has applied to the Department of Mineral Resources for a mining right in respect of certain coal resources.
(e) Superstar Bets develops software for sports betting. It was acquired for a purchase consideration of R12 million of which R3.2 million has been paid.
Its financial statements for the year ended 31 August 2023 reflects that the company has total equity and liabilities of R915 271.
19

(f) Ventel Management acquired shares in a contract mining company based in
the Northern Cape for R1 million. It has also won a tender to provide mining
services in the diamond industry. Its approved financial statements for the year ended 31 August 2023 reflect that it has total equity and liabilities of R15 684 638.
(g) Zippykind Partner buys motor vehicles through lay buys, pawning and instalment takeovers. Its approved financial statements for the year ended 31 August 2023 reflect that it has total equity and liabilities of R47 803 460.
(h) Carby Systems is a software provider to Zippykind. The software facilitates the transactions that Zippykind engages in. Its approved financial statements for the year ended 31 August 2023 reflect that the company has total equity and liabilities of R272 506.
(i) Vertex Legal develops and provide software for lawyers. Its approved financial statements for the year ended 31 August 2023 reflect that it has total equity and liabilities of R413.
(j) Gnedcci Institute is a chamber of commerce and business forum. It negotiates opportunities on behalf of small business owners and provides
accounting training for non- accounting executives.
(k) Holistic Superbet Shared Service (Holistic) is a procurement company. If a
company in the group needs equipment, then Holistic procures the equipment and lease the equipment to that company. Its approved financial statements for the year ended 31 August 2023 reflect that the company has total equity and liabilities of R25 480 868.
(l) 1111 Holdings is the intellectual property company. Any trademark or patent associated with any of the respondents is registered in this company. An example would include the software that Carby Systems provides to Zippykind. Its approved financial statements for the year ended 31 August 2023 reflects that it has total equity and liabilities of R33 475 888.
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(m)Celebryt International is an events management company. It has signed
contracts with musicians. It hosts music functions. It also owns Alphapac Media, which is an artist management company. Its approved financial statements for the year ended 31 August 2023 reflect that the company has total equity and liabilities of R213 684.
(n) Fur Group is a business whose existence precedes NTC. It was initially envisaged that Fur Group would be a private equity company. However, this did not materialise, and Fur Group has not made any investments.
(o) NTC Capital is a company that was started before NTC. It is a private equity company that owns investments in two farms. One is a cattle farm, and one is a sheep farm. NTC Capital also has an investment in a software company called Mbumbatel which provides voice over IP software. Its approved financial statements for the year ended 31 August 2023, reflects that the company has total equity and liabilities of R10 325 803.
(p) ET Bataung’s provides administrative services including processing invoices
and payment s, payroll management and accounting services to other
companies in the group. Its approved financial statements for the year ended 31 August 2023 reflect that the company has total equity and
liabilities of R58 161.
(q) Arbitrawallet provides a digital eWallet system via an app. Arbitrawallet
created this software. Its approved financial statements for the year ended 31 August 2023 reflect that the company has total equity and liabilities of R41 633 233.
(r) NTC Employees Administration has contracts with employees that provide labour to the various companies in the group. It serves as a labour broker within the group.
(s) Batee Tours is a shuttle company. It provides shuttle services and airport transfers. It gets business by word of mouth and referrals from travel
agencies. Some of the Zippykind vehicles are used in its business. Its
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approved financial statements for the year ended 31 August 2023, reflect
that the company has total equity and liabilities of R356 132.
(u) Ventel Property is a newly formed property company. Its purpose is to make an offer to buy properties at an auction. However, this fell through because of the preservation order.
(v) Ventel Management is a management company whose sole purpose is to provide management services to companies in the group.

[58] The companies work in tandem as part of the group, sourc ing and providing
services to each other. The companies have their own bank accounts .
Commercial arrangements between the companies are on commercial terms and
are documented. They derive funds from the debentures. No evidence has been
provided that NTC used money raised from earlier debentures to pay later debenture holders. According to the respondents, to date, R476 139 461.32 has
been raised through the debentures. This amount can be verified against the debenture certificates issued to debenture holders. It equates to the NDPP’s own calculation of R484,825,443.71 credited to NTC’s account. NTC has paid out R212,930,431.77 to debenture holders. Collectively, R160,597,692.75 has been
preserved by the NDPP. The balance of R104 million has been applied in
acquisition s and investments in and through other companies in the group. An
amount of $104,843,691.00 is held in a brokerage account of NTC that has not
been preserved by the NDPP .

Whether the preserved assets are instrument s of the offence of fraud and money
laundering
[59] To succeed in this application, the NDPP must establish that the preserved
assets are an instrumentality of a scheduled offence in the sense that they played
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a part in the commission of the offence.13 What I find most startling about the
NDPP’s case is that she seeks a forfeiture order on the premise that the
preserved assets are instruments of the crimes of fraud and money laundering
which are crimes referred to in schedule 1 of POCA . Yet, she makes no
allegations to sustain such a finding. S he relies on the alleged contravention of
section 7(1) and the SARB exchange control regulations. Her allegations do not
even begin to meet the elements of fraud and money laundering. She may have
formulated her case in this manner because fraud and money laundering are
scheduled in POCA whereas non- compliance with section 7(1) is not . Although
contravention of the SARB exchange control regulations is listed in item 33 of
schedule 1 of POCA and w hile operating a Ponzi scheme may fall within some of
the offences scheduled in POCA such as money laundering, as already found, no
evidence is presented t o sustain a finding that the preserved assets were
acquired as a result of these or any offence. The NDPP’s case is incoherent and
completely devoid of any merit.


13 National Director o f Public Prosecutions v Ro Cook Properties (Pty) Ltd; National Director o f Public
Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and Another; National Director of Public Prosecutions
v Seevnarayan 2004 (2) S ACR 208 (S CA) at paragraph s [53] and [59].
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[60] I must accept the respondent’s version that the respondent entities transfer red
funds and made payments to one another f or commercial purposes and in the
ordinary course of business . The NDPP did not seriously dispute i t and it is not
far-fetched.

[61] For all the above reasons, I must find that the NDPP has failed to establish that
the preserved assets are instrumentalities of the offences of fraud and money
laundering and that she presented no evidence to establish that the respondents
contravened section 7(1) of POCA and the ECR and that they operated a Ponzi scheme. Embarking on the proportionality exercise will therefore serve no
purpose. Her application in terms of section 48 (1) of POCA must fail.

Costs
[62] The respondents complain that the NDPP abused the court process and acted unconstitutionally when it warranted that it would respect the safeguards in POCA to limit the prejudice those affected by the preservation order sought and granted in their absence and which would have adverse impact on their right to deal with their property and to be heard. It undertook to serve the preservation order on the
respondents as soon as possible as required in terms of section 39(1) of POCA
and publish it in the government gazette within 14 days of it being granted as required in terms of section 39(3). Doing so would afford anyone who wanted to participate in the forfeiture proceedings and anyone with a legitimate interest in the property who wanted to exclude their interest in the property from forfeiture, an opportunity to do so at forfeiture stage of the proceedings. Therefore, the Court did not need to be concerned about the infringement of their rights at the preservation stage.

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[63] It follows that if the NDPP did not progress the preservation proceedings to
forfeiture stage, she would effectively deny parties affected by the preservation order an opportunity to exercise their right to oppose the application for an order for forfeiture in order to vindicate their property rights.

[64] The NDPP failed to fulfil her undertaking to serve the preservation order and application on the respondents. She also did not publish the preservation order in the Government Gazette, as required by s ection 39(3) of POCA as took more
than two months to do so. As a result of these failures, the rights of respondents and those of other persons affected by the preservation order were infringed in a manner not contemplated by the POCA. These undertakings were incorporated in the preservation order and were thus binding on the NDPP. By failing to fulfil them, she breached the preservation order and acted unconstitutionally.

[65] The respondents submit that the NDPP’s conduct is so egregious and abusive of the court process and of the statutory scheme in POCA that it cannot be tolerated and ought to be deprecated by setting aside the preservation order and dismissing the application for forfeiture, with punitive costs.

[66] The respondents have demonstrated that the NDPP breached the preservation order by failing to comply with both of these safeguards: she did not serve notice
of the preservation order together with the documents filed in support of the application on the respondents, nor did she publish the preservation order in the
Government Gazette timeously .

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[67] I am satisfied that the conduct of the NDPP complained of warrants a punitive
cost order against her (in her official capacity). The NPA is an organ of state, established in terms of the constitution. It enjoys extraordinary and wide- ranging
constitutional and statutory powers, the exercise of which inevitably will potentially encroach on the constitutional rights of others. It is for that reason that the constitution imposes on it as an organ of state the duty to act in accordance with the law and to promote, respect and fulfil constitutional rights. This includes the duty to respect court orders.

[68] The NDPP’s conduct in obtaining a preservation order ex parte and in camera but
failing to fulfil the terms of the order aimed at securing the respondents’ right to present a version in a section 39 notice and oppose the present application ,
failing to properly investigate the allegations against the respondents as well as
findings made by FAIS and SARB and br inging a forfeiture application which is
not supported by facts calls for deprecation by this court. Her conduct falls short
of the heightened standard imposed on public litigants as principal agents of the
constitution to fulfil procedural requirements and to tread carefully when dealing
with rights.
14 Although court recently applied this standard when considering a
personal cost order against a public official, I have not been advanced with any reason why the principles should not equally apply to a state institution such as
the NDPP, were her institution did not only fail to meet the heightened standard in litigation but where the litigation is not supported by fact, constitutes an abuse of process and where the respondent’s constitutional rights are implicated.

[69] All these considerations warrant the award for costs on a punitive scale against
the NDPP.

14 Public Protector v South African Reserve Bank 2019 (6) S A 253 (C C) AT PARAGRAPH 155 And Zuma v
Office of the Public Protector (unreported, SCA case no 1447/2018 dated 30 October 2020) at paragraphs
[39]– [41].
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[70] In the premises, the following order is made:

Order
[1] The application is dismissed with punitive costs .
[2] Such costs shall be inclusive of the costs of two counsel were so employed. [3] The preservation order granted by this court on 13 December 2023 under the
above case number is set aside.


LT MODIBA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances

Counsel for Applicant: Adv W DL Phahlane, assisted by Adv S Chikuni
Instructed by: The State Attorney, Pretoria

Counsel for Respondents: Adv G Wickins , assisted by SC Adv T Scott
Instructed by: Smit Swegoolan Inc , Saxonwold

Date of Hearing: 13 November 2024
Date of Judgment: 11 March 2025

MODE OF DELIVERY:
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This judgment is handed down electronically by transmission to the parties’ legal
representatives by email, uploading on Casel ines and release to SAFLII. The date
and time for delivery is deemed to be 1 1 March 2025 at 10h00.