IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG

Appeal Case No.: AR 388/24
In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT

and

THOSHAN PANDAY FIRST RESPONDENT

PRIVISHA PANDAY SECOND RESPONDENT

TASLEEM RAHIMAN THIRD RESPONDENT

SEAN CHRISTENSEN (CURATOR BONIS) FOURTH RESPONDENT


ORDER


On appeal from: KwaZulu-Natal Local Division, Durban (Marimuthu AJ, sitting as
court of first instance):
1. The appeal is upheld with costs, including the costs of two counsel (where so
employed), such costs to be taxed on Scale C.
2. The order of the court a quo dated 6 June 2023 (and the reasons delivered on
14 June 2023) is set aside and replaced with the following:

2

‘The application for an expenses order in terms of s 26(6) of POCA is
dismissed, with costs, such costs to be taxed on Scale B.’
3. There is no order as to costs in respect of the fourth respondent.


JUDGMENT


Masipa J (Harrison J and Saks AJ concurring)

Introduction
[1] This is an appeal, with leave of the court a quo, against an order granted ex
tempore on 6 June 2023 by Marimuthu AJ, authorising the payment of reasonable
living and legal expenses to the first, second and third respondents (the Panday
respondents) from assets subject to a restraint order in terms of s 26(6) of the
Prevention of Organised Crime Act 121 of 1998 (POCA).

[2] The appellant contends, in essence, that the application ought to have failed
because the Panday respondents bore the onus to place before the court admissible
evidence establishing compliance with the statutory jurisdictional facts that:
(a) Full disclosure was not made to the court as contemplated by POCA
(b) The restraint order that what was relied upon at the hearing included
impermissible submissions from the Bar and a species of 'consensus’ with Mr Sean
Christensen NO, the curator; and
(c) The court a quo, in effect, abdicated its statutory responsibility to the curator.

[3] Two further issues are central to the appeal. The first is whether, in a n
application in terms of s 26(6) of POCA, disclosure to the curator alone is sufficient,
or whether disclosure must be made to the satisfaction of the court. The second
concerns the second respondent’s reliance on income said to arise from Calandra
Trading 592 CC (Calandra), notwithstanding that Calandra was not an applicant for
expense relief and, on the appellant’s case, its assets could not competently be

3

treated as a reservoir to fund the living or legal expenses of the Panday
respondents.
Background
[4] On 29 March 2023, Chetty J granted a provisional restraint order in terms of
s 26 of POCA against the Panday respondents and others. The order restrained
specified realisable property and appointed the fourth respondent, Mr Sean
Christensen NO, as curator bonis. Its terms required, amongst other things,
disclosure by persons affected by the restraint of interests in property subject to
restraint and ongoing disclosure of income and expenditure. It also contained a
mechanism regulating access to restrained assets for living and legal expenses.

[5] On 16 May 2023, the Panday respondents launched an urgent application
seeking the release of funds for living and legal expenses in terms of s 26(6) of
POCA. It was not an application to vary the restraint order under s 26(10) of POCA.
The National Director of Public Prosecutions ( NDPP) opposed the application. The
curator filed an answering affidavit raising material shortcomings in the disclosed
information and identifying further information required to assess whether the
statutory requirements were met.

[6] The appeal record reveals that the Panday respondents undertook to file a
separate supplementary bundle ( disclosure affidavits ) for the perusal of the court.
The appellant’s complaint is that this supplementary bundle was never placed before
Marimuthu AJ as part of the application for the expenses order, with the result that
the court was not placed in possession of the evidence required to exercise the
statutory power.

[7] The court a quo recorded that:
‘[24] I am indebted to the parties for the detailed affidavits that have been placed before me.
They were extremely useful in reaching my decision.
[25] I am alive to the fact that the Applicants and the 2nd Respondent are in constant
engagement with each other and that the submissions made by the 2nd Respondent must

engagement with each other and that the submissions made by the 2nd Respondent must
be considered with all submissions placed before me. I am also aware that the Applicants
must satisfy the court and not the 2nd Respondent to succeed with the application. I have no

4

reason to doubt the submissions of the 2nd Respondent regarding his engagement with the
Applicants and his subsequent proposal.’
[8] That passage, properly understood, acknowledges both the correct legal
position (that applicants must satisfy the court) and simultaneously reveals the
difficulty that lies at the heart of the appeal: whether the court a quo, despite that
acknowledgement, nonetheless made an order in circumstances where the required
disclosure and proof were not placed before it in admissible form, and where the
court relied materially on extra-curial engagement and the curator’s proposal.

Issues
[9] The following issues arise:
(a) Whether the application was properly one under s 26(6) of POCA (ie release
for reasonable living and legal expenses), or whether it invoked s 26(10) of POCA
(variation of a restraint order), and the significance of that distinction.
(b) Whether the Panday respondents discharged the onus of proving the
jurisdictional facts in terms of s 26(6) of POCA on the papers, applying motion
proceedings principles.
(c) Whether, and to what extent, shortcomings in disclosure could be cured in
reply.
(d) Whether disclosure to the curator can substitute for disclosure to the court,
and whether the court a quo’s approach undermined the statutory scheme.
(e) Whether assets or income associated with Calandra could competently be
relied upon to fund the Panday respondents’ expenses.
(f) Whether the court a quo impermissibly abdicated its statutory function to the
curator when it authorised payment in a manner that effectively made the curator the
decision-maker on reasonableness and need.

Statutory framework
[10] POCA establishes an elaborate mechanism designed to preserve property
pending criminal proceedings and, where appropriate, to facilitate confiscation. The
restraint scheme is stringent. Relief permitting access to restrained property for
expenses is exceptional and tightly controlled.

5

[11] Section 26 of POCA establishes a tightly controlled statutory scheme
governing restraint orders. The appeal turns on the proper place of s 26(6) of POCA
within that scheme. Section 26(6) of POCA provides that a restraint order may make
provision for reasonable living and legal expenses:
‘(6) Without derogating from the generality of the powers conferred by subsection (1), a
restraint order may make such provision as the High Court may think fit-
(a) for the reasonable living expenses of a person against whom the restraint order is
being made and his or her family or household; and
(b) for the reasonable legal expenses of such person in connection with any proceedings
instituted against him or her in terms of this Chapter or any criminal proceedings to which
such proceedings may relate,
if the court is satisfied that the person whose expenses must be provided for has disclosed
under oath all his or her interests in property subject to a restraint order and that the person
cannot meet the expenses concerned out of his or her unrestrained property.’

[12] Section 26(10) of POCA, by contrast, empowers a court to vary or rescind a
restraint order on application. It provides as follows:
‘(10) A High Court which made a restraint order-
(a) may on application by a person affected by that order vary or rescind the restraint
order or an order authorising the seizure of the property concerned or other ancillary order
…’

[13] Two features are immediately apparent. First ly, s 26(6) of POCA is framed in
language that makes the court’s power conditional upon the court being satisfied of
two linked requirements , that full disclosure under oath of all interests in restrained
property and the inability to meet expenses out of unrestrained property. Secondly,
s 26(10) of POCA concerns variation/rescission of the restraint order (or ancillary
orders) and is conceptually distinct from the jurisdictional pre -conditions in s 26(6) of

orders) and is conceptually distinct from the jurisdictional pre -conditions in s 26(6) of
POCA. The court a quo was therefore required to determine whether the threshold
requirements of s 26(6) of POCA had been met.

The nature of motion proceedings, onus, and the evidentiary burden
[14] This matter was brought on motion. The Panday respondents, as applicants a
quo, carried the onus to establish the facts entitling them to the discretionary relief
they sought. It is trite that i n motion proceedings, affidavits serve both as evidence

6

and as the mechanism by which issues are defined. The well -known formulation in
Swissborough Diamond Mines (Pty) Ltd and Others v Government of the
Government of the Republic of South Africa and Others 1 is apposite, affidavits must
define the issues and place the material facts before the court; a party is not entitled
to leave the court or opponent to forage through annexures to construct its case. An
undertaking to provide documents later does not constitute evidence. An applicant
must ensure that all material necessary to justify the relief sought is properly before
the court at the time the discretion is exercised. That approach was reiterated in
National Director of Public Prosecutions v Zuma ,2 where the Constitutional Court
stated that:
‘… [A] party cannot be expected to trawl through annexures… [T]o speculate on the
possible relevance ...’ (My emphasis.) (Footnote omitted.)

[15] The principles set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd3 govern disputes of fact where final relief is sought in motion proceedings ,
the version of the respondent (together with admitted facts) generally prevails unless
it is so far -fetched or untenable that it can be rejected on the papers. These
principles matter here for two reasons. First, the jurisdictional facts in s 26(6) of
POCA had to be proven on affidavit, not by assertion, implication, or counsel’s
submission.4 Second, where the curator and NDPP raised concrete, documentary
concerns about non -disclosure and inconsistencies, the applicants a quo were
required to deal with them fully and candidly if they wished the court to be ‘satisfied’
within the meaning of s 26(6) of POCA.

Interpretation and the centrality of ‘court satisfaction’
[16] The proper approach to statutory interpretation requires consideration of text,
context, purpose and background. The purpose of s 26(6) of POCA is to balance, on
the one hand, the preservation of property for possible confiscation and, on the

the one hand, the preservation of property for possible confiscation and, on the

1 Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa
and Others 1999 (2) SA 279 (T) at 323F-325B.
2 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 47.
3 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) (Plascon-Evans) at
634E-635C.
4 AM Moolla Group Ltd and Others v The Gap Inc and Others 2005 (6) SA 568 (SCA) para 31 and
Van Heerden and Another v National Director of Public Prosecutions and Another [2015] ZAWCHC
96 at para 50 and 56.

7

other, the constitutional and practical necessity that an affected person is not
rendered destitute or unable to mount a defence but only where the statutory
gatekeeping requirements are met. In Naidoo and Others v National Director of
Public Prosecutions and Another5 the Constitutional Court held as follows:
‘As the Supreme Court of Appeal noted, the provisions of the statute, particularly s 26(1),
read with s 12 and s 14, permit restraint orders to be made only against realisable property
held by the person against whom the order is made, and not against realisable property held
by any other person. In my view, the reading the Supreme Court of Appeal gave to s 26
struck the correct legislative and constitutional balance.’ (footnote omitted.)

The Constitutional Court has repeatedly stressed that the disclosure requirement is
not ornamental. In National Director of Public Prosecutions v Elran ,6 Cameron J
explained that:
‘[81]… [D]isclosure therefore ought to be precisely tailored to the statute's requirements . In
its absence, the court cannot make an order.
[82] So, in my view, 'shall not' means what it clearly says. The provision creates threshold
preconditions without the fulfilment of which the court cannot exercise the s 44(1) power.
The threshold preconditions of need and disclosure are both cumulative ('and') and
interlinked, since a court cannot determine need ('cannot meet') without the
information required to be disclosed. The main judgment appears to accept that the
requirement of need in s 44(2) (a) is a minimum threshold. Yet the clear wording of the
provision, and the interlinking of the two requirements, shows that both constitute
preconditions.’
Furthermore, need and disclosure are interlinked because the court cannot
determine inability to meet expenses without the information meant to be provided
through disclosure.

[17] In Fraser v Absa Bank Ltd ( National Director of Public Prosecutions as

[17] In Fraser v Absa Bank Ltd ( National Director of Public Prosecutions as
Amicus C uriae),7 the Constitutional Court confirmed that the statutory question is
whether the court is satisfied that the person has disclosed under oath all interests in
property subject to the restraint order and cannot meet the expenses from

5 Naidoo and Others v National Director of Public Prosecutions and Another [2011] ZACC 24; 2012
(1) SACR 358 (CC) (Naidoo) para 23.
6 National Director of Public Prosecutions v Elran [2013] ZACC 2; 2013 (1) SACR 429 (CC) (Elran).
7 Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) [2006] ZACC
24; 2007 (3) SA 484 (CC) para 55.

8

unrestrained property. The emphasis on the court’s satisfaction is not incidental, it is
the mechanism by which judicial oversight is preserved. 8 The enquiry is whether
those facts exist in fact on the material before the court,9 not whether the court
subjectively believed them to exist.

[18] Against that background, if disclosure is made only to the curator and not
placed before the court in admissible form, the judicial discretion in s 26(6) of POCA
is hollowed out. The discretion is not the curator’s , it is the court’s. If the court is not
placed in a position to evaluate the disclosure and inability to pay from unrestrained
property, that is, in substance, the end of the matter. In the absence of the promised
supplementary bundle, which was amplified by the failure to draw the court a quo’s
attention to the affidavit filed in the main proceedings, the jurisdictional fact of full
disclosure did not exist on the material properly before the court. The court a quo
could not objectively have been satisfied that the statutory requirement had been
met.

Was this a s 26(6) application or a s 26(10) variation?
[19] The relief sought and granted was for living and legal expenses from
restrained assets. That is the terrain of s 26(6) , read with s 44 of POCA . To the
extent that the founding papers made oblique reference to variations of the restraint
order, the application was not pleaded with the precision required in motion
proceedings as identify with clarity which part of the order was to be varied, on what
factual basis, and with what evidentiary foundation. 10 Section 26(10) of POCA is not
a residual safety-valve permitting a court to bypass the jurisdictional requirements of
s 26(6) of POCA. Nor can s 26(10) of POCA be invoked by implication where the
pleaded case and the order granted are quintessentially relief in terms of s 26(6) of
POCA. On the papers, the case must stand or fall under s 26(6) of POCA.

POCA. On the papers, the case must stand or fall under s 26(6) of POCA.

Did the Panday respondents discharge the onus of full disclosure to the
court?

8 Elran paras 37-38.
9 Elran 31.
1010 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004]
ZACC 15; 2004 (4) SA 490 (CC) para 27.

9

[20] The statutory requirement of POCA is that ‘all interests in property subject to a
restraint order’, must be disclosed ‘under oath’, and in such a manner that the court
can be ‘satisfied.’ It follows that the applicants a quo bore the duty to place before
the court the disclosure evidence on which they relied upon. The record reflects that
the Panday respondents stated that their disclosure affidavits would be incorporated
and undertook to file a separate bundle marked ‘disclosure affidavits’ for the perusal
of the court. The NDPP’s complaint is that the promised bundle did not form part of
the papers served before Marimuthu AJ when the expenses order was granted. In an
application in terms of s 26(6) of POCA that is fatal. Without the disclosure evidence
before it, the court cannot perform the statutory enquiry. A litigant cannot satisfy a
jurisdictional fact by promising later compliance. That is particularly so where the
statute conditions the power on the court being ‘satisfied’ at the time it makes the
order.

[21] The curator’s answering affidavit did not merely raise peripheral queries. It
identified concrete instances of incomplete disclosure and sought specific,
corroborated information (including up -to-date financial statements, bank and
management accounts, and explanations on oath concerning corporate structures
and transfers). These were not trivial matters , they went to the heart of whether the
applicants had disclosed all interests in property subject to restraint and whether
unrestrained property existed to meet expenses. The NDPP likewise raised
substantial concerns, including the basis on which the first respondent claimed to
service bond instalments on a property owned by a trust in circumstances
suggesting a loan account , concerns about companies said to be dormant , and
anomalies such as similarity in payslips across different entities and the continued
payment of a ‘salary’ in circumstances where the relevant rental property had been

payment of a ‘salary’ in circumstances where the relevant rental property had been
sold, and a cellular phone account for a liquidated company . In terms of the
principles of motion proceedings, such contentions required a direct and
comprehensive answer on affidavit, supported by documentation where appropriate.
The applicants bore the onus , it was not for the NDPP or curator to disprove
disclosure.

[22] The Panday respondents’ case, as advanced on appeal, is that they were
entitled to address shortcomings in reply, particularly where the curator invited the

10

disclosure of further information. That submission cannot be accepted as a complete
answer. Even where itis permissible to deal with new matter in reply , the
foundational jurisdictional facts in applications for final relief must be established in
the founding papers. However, in this case, the replying affidavit was delivered one
day before the hearing, which only amplified the prejudice to the NDPP. The
Constitutional Court in Elran,11 underscored the rigour of the disclosure requirement
and the consequence of its absence. It is in that context that the argument that
‘nothing stops’ an applicant from making out a case in reply is misconceived , motion
proceedings are regulated by the rules, and the evidentiary burden lies on the
applicant seeking final relief. In any event, the appellant’s point is not merely that an
attempt was made to add material in reply, but that the court a quo was still not
presented with the complete disclosure evidence (including the promised
supplementary bundle) that would allow it to be ‘satisfied’ in terms of s 26(6) of
POCA.

[23] It was submitted that a further affidavit bearing a court stamp existed but did
not form part of the appeal bundle and could not be assumed to have been before
Marimuthu AJ. Even if such a document exists, it cannot assist the Panday
respondents unless it was part of the record upon which the court a quo relied on. An
appeal is determined on the record. A party cannot, by suggestion or inference,
improve its case on appeal by reference to documents not properly shown to have
served before the court a quo .12 Moreover, it was submitted that the affidavit
stamped on 28 April 2023 in the main (restraint) proceedings was not filed in the
application and, in any event, even if accepted , it pre-dated the curator’s answering
affidavit and therefore could not have dealt with the curator’s material complaints. On
either premise, it does not answer the central difficulty that the court a quo was not

either premise, it does not answer the central difficulty that the court a quo was not
placed in possession of admissible evidence sufficient to satisfy it that full disclosure
had been made.

The role of the curator and abdication of judicial responsibility

11 Elran para 129.
12 Minister of Land Affairs and Agriculture and Others v D and F Wevell Trust and Others [2007]
ZASCA 153; 2008 (2) SA 184 (SCA) para 50.

11

[24] The language in s 26(6) of POCA is unequivocal, the power exists only if the
court is satisfied with the disclosure and inability to meet expenses from unrestrained
property. The discretion is a judicial discretion, to be exercised by the court on
evidence properly before it. If an applicant could satisfy s 26(6) of POCA by making
disclosure only to the curator, and by relying on the curator’s opinion or proposal, the
statutory design would be subverted. Judicial oversight would be replaced by
administrative endorsement. The court would be reduced to confirming that the
curator is content. That is not what the statute permits.

[25] This is why the appellant’s ‘end of the matter ’ submission has force , where
disclosure is not made to the court (or, at minimum, placed before the court in
admissible form), the court cannot reach the satisfaction required by s 26(6) of
POCA, and the exercise of its discretion does not arise. The approach adopted by
the court a quo, relying on constant engagement between curator and applicants and
giving decisive weight to the curator’s proposal impermissibly shifts the locus of
satisfaction away from the court. In a statutory scheme that is “narrowly and finely
crafted”,13 that shift cannot be justified.

[26] The appellant submits that the court a quo abdicated its function by
authorising payments in a manner that effectively left it to the curator to determine
amounts and the reasonableness of those amounts , notwithstanding that POCA
requires the court to be satisfied of the jurisdictional facts and to exercise the
discretion judicially. Courts may, in appropriate circumstances, incorporate
agreements or draft orders, but only where the order is competent and the statutory
requirements are satisfied. Even where parties agree, the court must be satisfied
that the order accords with the law.14

[27] Here, the NDPP did not agree. More importantly, even the curator’s support

[27] Here, the NDPP did not agree. More importantly, even the curator’s support
could not cure a failure to comply with jurisdictional requirements. It is not competent
to grant relief on the strength of consensus where the statute requires the court’s
satisfaction on evidence of full disclosure and inability to pay from unrestrained
assets. The appellant also relied on authority cautioning against courts deferring to

13 Elran para 77.
14 Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC) paras 25-26.

12

experts in a manner that substitutes the expert’s decision with that of the courts. In
BNS Nominees (RF) (Pty) Ltd and Another v Arrowhead Properties Ltd ,15 the court
cautioned against abdication under the guise of deference. That principle applies a
fortiori where the statute entrusts the decision to the court itself.

Consequence of inadequate disclosure: the discretion does not arise
[28] The Constitutional Court in Elran,16 made plain that disclosure and need are
“cumulative and interlinked” and that the point of disclosure is to enable the court to
determine whether the applicant cannot meet expenses from unrestrained property.
Where disclosure is lacking, the court cannot be satisfied and has no discretion to
grant the order.

[29] The appellant’s argument is not a formalistic insistence on paperwork. It is the
statutory mechanism itself. If the court is not furnished with the disclosure evidence
under oath, it cannot determine the existence and extent of unrestrained property, it
cannot evaluate need, and cannot lawfully exercise its discretion. The ‘need’
submission cannot be used to invert the scheme so that need defeats disclosure.
POCA requires both.

Application of Plascon-Evans and the proper approach to disputes on the
papers
[30] Even assuming some disclosure material was before the court a quo, the
curator and NDPP raised disputes and concerns of substance. In terms of Plascon-
Evans, those disputes could not simply be brushed aside by reliance on the absence
of argument that the respondents ‘do not have expenses ’. The statutory enquiry is
not whether people generally have living expenses , it is whether the applicants have
disclosed all interests in restrained property and cannot meet the expenses from
unrestrained property.

[31] In addition, the ‘no trawling through annexures ’ principle underscores the
appellant’s complaint , being that the applicants a quo were required to put up a

appellant’s complaint , being that the applicants a quo were required to put up a

15 BNS Nominees (RF) (Pty) Ltd and Another v Arrowhead Properties Ltd 2023 (1) SA 478 (GJ) para
59.
16 At paras 82 and 98-102.

13

coherent case, with the evidence clearly identified and placed before the court. The
court a quo was not required to reconstruct the applicants’ case from scattered
schedules, references and implied incorporation, especially where a specific
supplementary bundle was promised but not produced.


The Calandra issue
[32] Calandra was not an applicant for expense relief in the court a quo . It was
common cause on the papers that Calandra is a juristic person and that its assets
formed part of the restrained estate in terms of the restraint order. In Naidoo,17 the
Constitutional Court held that:
‘… [I]t is not a plausible interpretation that access can be given to property held by a person
other than the person against whom the restraint order was made.’
The mechanism under s 26(6) of POCA is tied to the person against whom the
restraint order is made. The purpose, as explained by Cameron J in Naidoo,18
includes discouraging defendants from hiding assets by donating them away.

[33] On the appellant’s case, the attempt to source living expenses for the second
respondent from interest or income said to be associated with Calandra is
inconsistent with Naidoo. Even if interest accrued on Calandra’s funds, that interest
accrued to Calandra. Absent a proper legal foundation and full disclosure
demonstrating entitlement, the court a quo could not competently treat Calandra’s
Trading’s assets as available to pay the Panday respondents’ expenses. This
concern is sharpened by the factual complaints recorded by the NDPP that
Calandra’s relevant rental property had been sold , yet a salary was purportedly paid
for the ‘management’ of a rental enterprise said to have become dormant. Without
full disclosure and objective evidence, the court a quo could not be satisfied that
such payments were lawful, necessary, and properly sourced within the confines of
the restraint scheme. The reliance on Calandra Trading’s assets was impermissible
and contrary to binding authority.

and contrary to binding authority.

Further evidence on appeal

17 Naidoo para 20.
18 Naidoo paras 29–31.

14

[34] The Panday respondents foreshadowed an application to lead further
evidence that was said to relate to procedural challenges in compiling the record and
setting down the appeal rather than substantive merits. The ordinary test for further
evidence on appeal is stringent. In this matter, however, such evidence would not
alter the dispositive legal conclusion: the validity of the expenses order depends on
whether, on the record before the court a quo, the jurisdictional facts in s 26(6) of
POCA were established. Procedural difficulties on appeal cannot retroactively supply
jurisdictional facts that were not proven when the order was granted.

Conclusion
[35] In summary:
(a) The Panday respondents bore the onus to establish, on admissible evidence
in the motion papers, that they had disclosed under oath all interests in restrained
property and could not meet reasonable living and legal expenses from unrestrained
property.
(b) They undertook to file a supplementary ‘disclosure affidavits ’ bundle for the
court’s perusal. The record does not demonstrate that this was placed before the
court a quo in the expenses application in a manner enabling the statutory
satisfaction required by s 26(6) of POCA.
(c) The curator’s answering affidavit raised material instances of incomplete
disclosure and required further specific information. The attempt to cure disclosure in
reply did not validly establish the foundational jurisdictional facts for final relief, and in
any event did not place the court in possession of the full disclosure evidence under
oath.
(d) The statutory discretion is vested in the court. Disclosure to the curator cannot
substitute for disclosure to the court. Reliance on constant engagement with the
curator and the curator’s proposal undermined the court’s statutory responsibility
and, in effect, amounted, to an abdication of the court’s function.
(e) Calandra was not an applicant for expense relief. Treating its assets or

(e) Calandra was not an applicant for expense relief. Treating its assets or
income as available to fund the Panday respondents’ expenses is inconsistent with
the dicta in Naidoo19 and the individualised character of the restraint/expense
mechanism.

19 Naidoo paras 23 and 26.

15


[36] The appeal must therefore succeed.

Order
[37] The following order is made:
1. The appeal is upheld with costs, including the costs of two counsel (where so
employed), such costs to be taxed on Scale C.
2. The order of the court a quo dated 6 June 2023 (and the reasons delivered on
14 June 2023) is set aside and replaced with the following:
‘The application for an expenses order in terms of s 26(6) of POCA is
dismissed with costs, such costs to be taxed on Scale B.’
3. There is no order as to costs in respect of the fourth respondent.




_________________________________
MASIPA J


I agree


_________________________________
HARRISON J


I agree


_________________________________
SAKS AJ

16








APPEARANCE DETAILS:

Matter heard on: 24 October 2025
Judgment delivered on: 23 January 2026

For the appellant: Mr G Marcus SC
Ms K Saller
Instructed by: The State Attorney KwaZulu-Natal, Durban


For the 1st, 2nd & 3rd respondent: Mr J E Howse SC
Instructed by: Kershnie Govender Attorneys, Durban
North.