IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
and
IQBAL MEER SHARMA
NULANE INVESTMENTS 204 (PTY) LTD
ISLANDSITE INVESTMENTS 180 (PTY) LTD
KURT ROBET KNOOP N 0
[In his capacity as business rescue practitioner
of lslandsite Investments 180 (Pty) Ltd]
JOHAN LOUIS KLOPPER N 0
[In his capacity as business rescue practitioner
of lslandsite Investments 180 (Pty) Ltd]
and
ISSAR GLOBAL LIMITED
ISSAR CAPITAL (PTY) LTD
TARINA PATEL-SHARMA
Not Reportable
Case no: 2427/2021
APPLICANT
FIRST DEFENDANT
SECOND DEFENDANT
THIRD DEFENDANT
FOURTH DEFENDANT
FIFTH DEFENDANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
2
Neutral citation: NDPP v Sharma & Others (2427/2021) [2025] ZAFSHC 291
(16 September 2025)
Coram: DE LA REY AJ
Heard: 7 August 2025
Delivered: This judgment was handed down electronically by circulating to
the parties' representatives by email and released to SAFFLI. The date and time for
hand-down is deemed to be 12h00 on 16 September 2025.
Summary : Prevention of Organised Crime Act 121 of 1998 - provisional
restraint order - requirements for granting - scope of order must be proportionate to
anticipated confiscation order - sufficient grounds established of the possibility that a
trial court might grant a confiscation order -limitless value of the property sought to
be restraint does not constitute an appropriate relationship between the alleged
benefits and the anticipated confiscation order.
3
ORDER
1 The provisional restraint order granted by Naidoo J, on 2 June 2021 is
amended as follows:
'By amending paragraph 1.1 to read:
1.1 Subject to paragraph 1.3 A, this order relates to realisable property as
defined in sections 12 and 14 of POCA and extends to:
By inserting as paragraph 1.3A the following:
1.3A The value of the realisable property under restraint shall not exceed the
combined total of:
a) R24 429 120.00, increased at the rate of the Consumer Price Index
from November 2011 to date of this order.
b) R19 070 934.00, increased at the rate of the Consumer Price Index
from November 2011 to date of this order.'
2 The provisional restraint order made by Naidoo J, on 2 June 2021, as
amended is confirmed and made final.
3 The applicant and third to fifth defendants shall pay their own costs.
4 The first and second defendant shall pay the applicants cost proportional to its
opposition to the confirmation of the restraint order, including the costs of two
counsel where so used. Counsel fees shall be taxable on scale C for senior counsel
and scale B for junior counsel.
JUDGMENT
De la Rey AJ
Introduction
[1] On the extended return day of a provisional restraint order granted by
Naidoo J on 2 June 2021, pursuant to an ex parte application by the applicant, the
National Director of Public Prosecutions (NDPP), in terms of s 26 of the Prevention
4
of Organised C rime Act 121 of 1998 (POCA), the NDPP sought confirmation of the
provisional order. The first defendant, Iqbal Meer Sharma (Sharma) and second
defendant Nulane Investments 204 (Pty) Ltd (Nulane), w ith the first to third
respondents, as associated parties, seek the discharge thereof. The third defendant,
lslandsite Investments 180 (Pty) Ltd (lslandsite), and the fourth (Knoop N 0) and fifth
(Klopper N 0) defendants, for reasons apparent hereafter seek a variation of the
preservation order in capping it to R24 492 120.00.1 The provisional restraint order is
wide ranging and uncapped.
[2] The defendants were indicted on two charges of fraud and one of money
laundering. More specifically, the first charge of fraud relates to an amount of
R24 492 120.00, which was fraudulently procured from the Free State Department of
Agriculture and Rural Development (the Department) by Nulane. The second charge
of fraud related to two payments of RB 800 000.00 and R10 200 000.00, respectively
to Nulane's Bank of Baroda account by Pragat based on an illegitimate agreement
between Nulane and Gateway Ltd in terms whereof R19 070 934.00 was paid to
Gateway Ltd. The charge of money laundering relates to the laundering of the said
R19 070 934.00, unlawfully obtained by Nulane through transfer from its account to
the offshore account of Gateway Ltd under a false pretext of a payment due in terms
of a contract between Nulane and Gateway Ltd. It is alleged that the parties shared a
common purpose in executing the alleged crimes.
[3] It is apparent that the R19 070 934.00 allegedly laundered as set out in
count three of the indictment also forms the subject matter of count 4 of the
indictment. The R19 070 934.00 thus formed part of the R24 492 120.00 paid by the
Department to Nulane.
[4] After having been discharged on all the counts by the trial court,2 the
Supreme Court of Appeal (SCA) in S v Thabethe and Others (Thabethe), 3 in a
Supreme Court of Appeal (SCA) in S v Thabethe and Others (Thabethe), 3 in a
1 During argument it was submitted that this amount could be increased at the rate of the CPI from
November 2011 to date of order.
2 S v Thabethe and Others (2023] ZAFSHC 126.
3 S v Thabethe and Others 2025 ZASCA 88; [2025] 3 All SA 333 (SCA) (Thabethe).
5
comprehensive judgment overturned the findings of the trial court and ordered that
the defendants may be retried for the same offences in respect of which they were
acquitted on 21 April 2023, as if they had not previously been arraigned, tried and
acquitted: provided that the trial commence before a different judge.
[5] It is trite that in considering whether to confirm the provisional restraint order,
a court need only be satisfied that there are reasonable grounds for believing that a
confiscation order may be made upon conviction.4 This Court thus does not
pronounce on the guilt or innocence of any party nor make any findings on disputes
emanating from the papers. The trial court is not restricted to making a confiscation
order in relation only to the offences of which the offender has been convicted but
also from any criminal activity which the court finds to be sufficiently related to the
offences.5
[6] In Thabethe the first to third defendants were cited as the fourth, fifth and
seventh respondents. Having considered the totality of the evidence led in the court
a quo, the SCA in Thabethe made the following significant findings in relation to the
defendants (respondents in the appeal): •
'Prima facie the evidence shows a carefully planned scheme, in which the respondents
pursued a common purpose to defraud the Department and launder the proceeds ...
There is accordingly direct prima facie evidence that Worlds Window, Nulane (and its
director, the fourth respondent) and the sixth respondent (who instructed Deloitte) are
involved in the fraud (of] the Department referred to in count 2 of the proceedings, and that
the proceeds, derived from that fraud, were laundered almost immediately after each
payment by the Department ...
Prima facie, therefore, the State established common purpose based on a prior agreement,
which may be inferred from the facts; or active association and participation by the
which may be inferred from the facts; or active association and participation by the
respondents in a common criminal design, with intention of committing the offences alleged
in the indictment. '6
4 National Director of Public Prosecution v Kyriacou [2003) ZASCA 95; [2003] 4 All SA 153 (SCA) ;
2004 (1) SA 379 (SCA ); 2003 (2) SACR 524 (SCA) (Kyriacou) para 10.
5 Kyriacou para 11 .
6 Thabethe paras 55, 56 and 57.
6
[7] Following the judgement in Thabethe, third defendant and fourth and fifth
defendants (in their capacity as business rescue practitioners of lslandsite) did not
during argument oppose the confirmation of the provisional restraint order but sought
a variation of the order to the effect that it should not remain uncapped, and that it
should be capped in the amount of approximately R24 984 240.00 being the initial
payment made by the Department to Nulane.
[8] Sharma in his capacity as director and sole shareholder of Nulane together
with the associated entities being the first to third respondents, did not, irrespective
of the findings in Thabethe concede that the provisional order should be confirmed
and reiterated its initially held defence that Sharma had no control of Nulane and no
involvement or knowledge of its dealings, despite the fact that he was the sole
shareholder and director of Nulane at all relevant times.
[9] Considering the very low threshold the applicant needs to establish, the
findings in Thabethe puts paid to any argument that there are no reasonable grounds
for believing that the court which convicts may make a confiscation order.7 The
provisional order thus stands to be confirmed, and the only question left is whether it
should be capped or not.
Limited or limitless restraint:
(1 O] It is trite that the primary object of a confiscation order is not to enrich the
State but rather to deprive the convicted person of ill-gotten gains.8 Section 18(1) of
POCA reads:
'1 Whenever a defendant is convicted of an offence the court convicting the defendant
may, on application of the public prosecutor, enquire into any benefit which the defendant
may have derived from -
(a) that offence;
(b) any other offence of which the defendant has been convicted at the same trial; and
(c) any criminal activity which the court finds to be sufficiently related to those offences.'
7 Section 18 of the Prevention of Organised Crime Act 121 of 1998 (POCA) .
7 Section 18 of the Prevention of Organised Crime Act 121 of 1998 (POCA) .
6 National Director for Public Prosecutions v Ram/utchman [2016] ZASCA 202; 2017 (1) SACR 343
SCA at para 7.
7
[ 11] Section 18(2) states:
'2. The amount which a court may order the defendant to pay to the State under
subsection (1) -
(a) shall not exceed the value of the defendants proceeds of the offences or related
criminal activities referred to in that subsection, as determined by the court in accordance
with the provisions of this chapter; or
(b) if the court is satisfied that the amount which might be realised as contem plated in
s 20(1) is less than the value referred to in paragraph (a), shall, not exceed an amount which
in the opinion of the court might be so realised.'
[12] Thus, the amount for which a confiscation order may be made is restricted to
the lesser of (a) the monetary value of the proceeds of the offences or related
criminal activity or (b) the net value of the sum of the defendant's property and
certain defined gifts (called 'affected gifts') made by the defendant.
[13] In summary , it is lslandsite's case that the value of the offences on which it
might be convicted relates to the amount of R24 492 120.00 being the initial and only
payment from the Department paid to Nulane following the Worlds Window letter.
Furthermore, that the R19 070 934.00 that was subsequently paid from Nulane's
Bank of Bereda account to Gateway Ltd which forms the subject matter of counts 3
and 4, respectively, forms part of the initial payment and as such should not be
considered as a separate benefit. Hence it is its case that the restraint order should
be capped at R24 492 120.00.
[14] The NDPP , premised largely on the fact that at the time of the alleged money
laundering an amount of R522 382 617.56 flowed through the bank account of
lslandsite and as such by applying the presumptions as set out in s 22(3) of POCA ,
the full R522 382 617.56 constitutes the proceeds of crime and thus a benefit as
stipulated in s 18(1 )(c), sought confirmation of the uncapped restraint order.
[15] In National Director of Public Prosecutions v Rautenbach and Another
8
(Rautenbach),9 Navsa JA et Ponnan AJA held:
'In the Act there is no express limitation placed on the extent of a provisional restraint order.
Sections 26 (1) and (2) are couched in broad terms, which ultimately leaves it to the
discretion of the court to decide the ambit and extent of the restraint order. Section 26(3)(a)
provides for a return day on which an affected person may show cause why the restraint
order should be set aside. Furthermore, a person affected by a provisional order is entitled,
in terms of s 26(1 O)(a) of the Act, to apply to the same High Court that made the initial order
to vary or rescind the order on the following bases:
"(i) that the operation of the order concerned will deprive the applicant of the means to
provide for his or her reasonable living expenses and cause undue hardship for the
applicant; and
(ii) that the hardship that the applicant will suffer as a result of the order outweighs the
risk that the property concerned may be destroyed, lost, damaged, concealed or transferred;
There are thus statutory safeguards to prevent overreaching and abuse. However, it would
be offensive to justice if the effect of a restraint order was disproportionate to the
contemplated future conviction and confiscation order ... '
[16] If there is no express limitation placed on the exact extent of the provisional
order the question is whether the unlimited provisional restraint order could be
considered disproportionate to the contemplated future conviction and confiscation
order that might follow.
[17] The movement of large amounts of money to and from the lslandsite account
is apparently justified as inter-company loans and on the ground that lslandsite had a
so-called 'treasury function'. This explanation was put forth in rebuttal of the
presumptions ins 22(1) and (3).
[18] In Thabethe, 10 the court raised numerous questions relating to the so-called
inter-company loans, then relates it back to the initial payment by the Department to
inter-company loans, then relates it back to the initial payment by the Department to
Nulane's bank account in stating:
9 National Director of Public Prosecutions v Rautenbach and Another [2004] ZASCA 102; [2005] 1 A ll
SA 412 (SCA); 2005 (4) SA 603 (SCA ); 2005 1 SACR 530 (SCA) (Rautenbach) paras 86-87.
10 Th a be the para 97.
9
' ... Neither was it disputed that the sum of R24 984 240 was moved by way of numerous
transactions into the bank accounts of various companies associated with Nulane and
Gateway, through layers of transactions, in which lslandsite and its financial manager,
Ms Ronica Ragavan, the eighth respondent, played a prominent role. Where appropriate, we
refer to Ms Ragavan as 'the eighth respondent'. As is shown below, this was done to
distance the funds from their criminal source - the fraud on the Department.
So, far from being the 'death knell' to the State case, prima facie the evidence of Messrs
Rankuoatsana and Zama established the movement of the funds from the Department to
Nulane's Bank account, from which they were rapidly transferred from one account to
another through the cash focus system, and through layers of artificial transactions set out in
Count 3. lslandsite and Ms Ragavan played a pivotal role in the co-ordination of these
transactions, which were designed to distance the funds from their criminal source - the
fraud on the Department - and to make detection of the source as difficult as possible. This,
prima facie, is a typical case of money laundering as contemplated in s 4(1) of the POCA
The relevant respondents should not have been acquitted on Count 3.'11
[19) The provisional restraint order cast a wide net in relation to realisable property
as defined in s 14 of the Act and besides the property specifically listed in the
schedule of known assets which includes movable and fixed assets of Sharma,
lslandsite, lssar Capitol and Tarina Patel-Sharma, it includes all other property held
by defendants, all property held for and on behalf of defendants,
shareholding/membership interest of defendants in any company/close corporation,
property held by lssar Global and Tarina Patel-Sharma, all property held by any legal
representative of any defendant in trust or another way , all realisable property that
representative of any defendant in trust or another way , all realisable property that
might be transferred to defendants and respondents and all affected gifts received by
defendants.
[20) The property under restraint falls within the definition of 'property' as defined
in s 26(2) of POCA , which details with the type of property in respect of which
restraint orders may be made :
'A restraint order may be made -
(a) in respect of such realisable property as may be specified in the restraint order and
which is held by the person against whom the restraint order is being made ;
11 Thabethe paras 21 and 98.
10
(b) in respect of all realisable property held by such person, whether it is specified in the
restraint order or not;
(c) in respect of all property which, if it is transferred to such person after the making of
the restraint order, would be realisable property.'
[21] The SCA noted in Rautenbach12 that:
'Where the requirements of the Act have been met a Court is called upon to exercise a
discretion as to whether a restraint order should be granted, and if so, as to the scope and
terms of the order, and the proper exercise of that discretion will be dictated by the
circumstances of the particular case. The Act does not require as a prerequisite to the
making of a restraint order that the amount in which the anticipated confiscation order might
be made must be capable of being ascertained, nor does it require that the value of property
that is placed under restraint should not exceed the amount of the anticipated confiscation
order. Where there is good reason to believe that the value of the property that is sought to
be placed under restraint materially exceeds the amount in which an anticipated confiscation
order might be granted, then clearly a court properly exercising its discretion will limit the
scope of the restraint (if it grants an order at all), for otherwise the apparent absence of an
appropriate connection between the interference with property rights and the purpose that is
sought to be achieved - the absence of an "appropriate relationship between means and
ends, between the sacrifice the individual is asked to make and the public purpose that [it] is
intended to be served" -will render the interference arbitrary and in conflict with the Bill of
Rights.'
[22] The question is thus whether, considering the charges, the value of the
benefits and the value of the assets currently under restraint, the unrestricted
provisional order represents an appropriate connection between the purpose in
securing enough assets to satisfy a possible confiscation order and the ongoing
securing enough assets to satisfy a possible confiscation order and the ongoing
interference of the parties' property rights.
[23] One cannot turn a blind eye to the events following the granting of the
provisional order in considering whether the final order should remain unlimited. The
defendants' assets have been under the provisional restraint order since 2 June
12 Rautenbach para 56.
11
2021. More than four years later, as evidenced by the curators' latest report13 the
total value of the assets under restraint amounts to R81 137 640 (market value) and
R47 236 834 (forced sale value). The assets under restraint includes all the assets
as listed in the NDDP's schedule of assets as mentioned above plus more. The
assets so restraint belongs to Iqbal Sharma , lslandsite, lssar Global and Tarina Patel
Sharma. Nulane has been deregistered and any assets in its name would in any
event befall the State. lslandsite has been under business rescue since prior the
launching of the restraint application. It remains uncertain whether the curator would
be able to secure any further assets as none, appear from the curator's report. There
appears to be offshore bank accounts that have remained inaccessible since the
granting of the provisional order end it seems unlikely that it would at this time still
have any significant balances.
[24] Even if there are reasonable grounds to believe that a court might find that the
moment the R24 984 240.00 from the bank account of Nulane which was transferred
by way of numerous transactions in which lslandsite played a role, and as such it
became part of a much larger scheme in which lslandsite in its capacity as a so
called holding company with a 'treasury function' played a pivotal role and that the
movement of R522 382 617.56 in the lslandsite account, by virtue of the
presumption in s 22(1) and (3), became SL:Jfficiently related to the offences in counts
2, 3 and 4 it is unclear how and to what extent the defendants had derived
substantial benefits, save for the benefits already under restraint, therefrom.
[25] The profound impact of the unrestricted restraint order on all the parties, but
especially lslandsite cannot be ignored. The very purpose of business rescue is to
facilitate the rehabilitation of a company , 14 and maximise the likelihood of the
company continuing to exist on a solvent basis. What possible purpose can the
company continuing to exist on a solvent basis. What possible purpose can the
business rescue achieve if lslandsite is effectively, by virtue of the unlimited restraint,
prevented from ever achieving this goal. The granting of the s 133 order, allowing the
asset forfeiture proceedings, effectively denies lslansite any breathing space whilst
13 Dated 11 Septembe r 2024.
14 Section 128 of the Compan ies Act 71 of 2008.
12
attempting rehabilitate it.15 This factor and the continued unlimited restraint order
make any possible business rescue unachievable. It is not inconceivable that further
appeals and the finalisation of a new trial as envisaged in Thabethe, may be a long
way off.
[26] The movement of R522 382 617.56 through the lslandsite account was an
incidental finding during investigation. The money laundering charge against
lslandsite relates purely to the alleged laundering of the R19 070 934.00 unlawfully
obtained by Nulane through transfer from its account to the offshore account of
Gateway Ltd under a false pretext of a payment due in terms of a contract between
second defendant and Gateway.
[27] Besides the inordinate period of the restraint, I am not convinced that, as the
indictments currently stands, there is an appropriate relationship between the
limitless value of the property sought to be restraint and the anticipated confiscation
order. On the facts of this case, keeping the restraint order limitless would be
offensive to justice and punitive in nature.
[28] Accepting that the moveme nt of the R24 984 240.00 or part thereof
constituted the proceeds of criminal activity in the hand of each party, means the
direct benefits amounts to R24 984 240.00 in the hands of Sharma and Nulane, and
R19 070 934.00 in the hands of lslandsite. Limiting the restraint to the total of these
amounts increased at the rate of the Consumer Price Index would in this Court's
opinion represent an appropriate relationship between the asset value sought to be
restraint and an anticipated confiscation order.
[29] Because of the interrelated nature of the alleged crimes however one cannot
apportion specific benefits to specific parties and the restraint order will thus cover all
the parties.
[30] It follows that the restraint order is capped as set out in the order.
15 Ergomode (Pty) Ltd v Jordaan NO and Others [2024] ZASCA 10 para 33.
13
Costs
[31] Although lslandsite made no formal tender and this Court was urged to,
irrespective of any success on its part, still grant cost against it, the fact remains that
its stance on a capped restraint has been known for a long time and there is no
reason why the NDPP and lslandsite could not have agreed thereto long before the
hearing of this application. Both the NDPP and lslandsite achieved a measure of
success, and I deem it fair and just that both parties shall pay their own cost. Sharma
and Nulane shall however be liable to pay the NDPP 's cost in opposing the
confirmation of the rule nisi, proportionally to its opposition.
[33] In the result the following orders are granted:
1 The provisional restraint order granted by Naidoo J, on 2 June 2021 is
amended as follows:
'By amending paragraph 1.1 to read:
1.1 Subject to paragraph 1.3 A , this order relates to realisable property as
defined in sections 12 and 14 of POCA and extends to:
By inserting as paragraph 1.3A the following:
1.3A The value of the realisable property under restraint shall not exceed the
combined total of:
a) R24 429 120.00, increased at the rate of the Consumer Price Index from
November 2011 to date of this order.
b) R19 070 934.00, increased at the rate of the Consumer Price Index
from November 2011 to date of this order.'
2 The provisional restraint order made by Naidoo J, on 2 June 2021, as
amended is confirmed and made final.
3 The applicant and third to fifth defendants shall pay their own costs.
4 The first and second defendant shall pay the applicants cost proportional to its
opposition to the confirmation of the restraint order, including the costs of two
counsel where so used. Counsel fees shall be taxable on scale C for senior counsel
and scale B for junior counsel.
14
HE DE LA REY
ACTING JUDGE OF THE HIGH COURT
Appearances
For the applicant:
Instructed by:
For the first and second defendants
and respondents:
Instructed by:
For the third to fifth defendants:
Instructed by:
15
G Budlender SC with K Kollapen
The State Attorney,
Bloemfontein
H Potgieter
Forbay Attorneys, Pretoria
c/o Gcasamba Incorporated,
Bloemfontein
A Bham SC with LVR van Tonder
Smit Sewgoolam Incorporated,
Johannesburg
c/o Mcintyre Van der Post
Bloemfontein.