REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
(1)
(2)
(3)
REPORTABLE:Y,i?S/NO
OF INTEREST TO OT JUDG S: YfeS/NO
REVI ED: YES/tii6 .
o~ '20?..G
DATE
In the matter between:
JULIAN MICHAEL GECEL TER
LANCE KAHN
WENDY ANN KAHN
MERVYN JEFFREY KLOTZ
and
Case Number: 2025-038851
39th Respondent in convention /
Applicant 1 in reconvention
401h Respondent in convention /
Applicant 2 in reconvention
41 st Respondent in convention I
Applicant 3 in reconvention
42nd Respondent in convention I
Applicant 4 in reconvention
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Respondent
INRE:
In the ex parte matter between:
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
and
MAHENDRA BENNIDEEN
DINISHA BENNIDEEN
MICHAEL ALLEN MARTIN
MANYACA VANESSA MARTIN
ADELE BABS VORSTER
DIRK AUVERNE VORSTER
RITESH MAHARAJ
SHUNMUGAM UNGA MOODLEY
SAMUEL WALDRON THOMSON
NICOLAS JOHANNES VAN VUUREN
SAVANTHALA Y MOODLEY
DENISE JANICE THOMSON
LIONSGA TE SECURITY SERVICES (PTY) LTD
LATEOTORQUE(PTY)LTD
NARA FOR (PTY) LTD
RENS KONT ANT IN TRANSITO CC
2
Applicant
First Defendant
Second Defendant
Third Defendant
Fourth Defendant
Fifth Defendant
Sixth Defendant
Seventh Defendant
Eighth Defendant
Ninth Defendant
Tenth Defendant
1st Respondent
2nd Respondent
3rd Respondent
4th Respondent
5th Respondent
6th Respondent
DENNIS NICOLAS JOSEPH
THOLSEINATHAN SHANMOOGAN PILLAY
CHRISTOFFEL JOHANNES JANSE VAN RENSBURG
LEDGERTON DASCHNER
CHARLOTTEDASCHNER
CHANIQUE DASCHNER
KK KOKETSO HOLDINGS (PTY) LTD
MORNE VAN VUUREN
FTS ACCOUNTANTS (PTY) LTD
VUUREN PROPERTY INVESTMENTS (PTY) LTD
MELISSA MERILYN RAMSAMY
UNEIL BODASING
AVISTHI DUKHI BODASING
ASHOK SEWNARAIN
ANDERSON ZITUTA N.O.
(A TRUSTEE OF ISHARA SOOKDEO FAMILY TRUST)
ASHOK SEWNARAIN N.O.
(A TRUSTEE OF ISHARA SOOKDEO FAMILY TRUST)
KESHLIN BIJOU N.O.
(A TRUSTEE OF ISHARA SOOKDEO FAMILY TRUST)
MANGONGWANE JACOB MEHLO N.O.
(A TRUSTEE OF ISHARA SOOKDEO FAMILY TRUST)
SHIVANI GOSAI N.O.
(A TRUSTEE OF ISHARA SOOKDEO FAMILY TRUST)
3
7th Respondent
8th Respondent
9th Respondent
10th Respondent
11th Respondent
12th Respondent
13th Respondent
14th Respondent
15th Respondent
15th Respondent
17th Respondent
18th Respondent
1 gth Respondent
20th Respondent
21 st Respondent
22nd Respondent
23rd Respondent
24th Respondent
25th Respondent
SILVER HUB INVESTMENTS (PTY) LTD
RANDBURG MUNT (PTY) LTD
JASPER CLIFORD JANSEN VAN RENSBURG
JASPER CLIFORD JANSEN VAN RENSBURG
(AS A TRUSTEE OF NAJATI TRUST)
JASPER CLIFORD JANSEN VAN RENSBURG
(AS A TRUSTEE OF MAJANI TRUST)
JASPER CLIFORD JANSEN VAN RENSBURG N.O.
(AS A TRUSTEE OF JOMAWE TRUST)
JULIE MAY JANSE VAN RENSBURG
NDIVHUWO KEVIN MUDAU
SHOPO GAOHANE NELLY
MATTHEW PARKER
MALCOM CHARI
YEUKAI EUNICE CHARI
MAGEDE NICOLLA ANESU ZVICHANZII
JULIAN MICHAEL GECEL TER
LANCE KAHN
WENDY ANN KAHN
MERVYN JEFFREY KLOTZ
ASAVELA GINGCANA
TIAAN EBERSOHN
4
26th Respondent
27th Respondent
28th Respondent
29th Respondent
30th Respondent
31 st Respondent
32nd Respondent
33rd Respondent
34th Respondent
35th Respondent
35th Respondent
37th Respondent
3ath Respondent
39th Respondent
40th Respondent
41 st Respondent
42nd Respondent
43rd Respondent
44th Respondent
CAMPDEN GROUP (PTY) LTD
WAYNE CHAKAUYA
NICOSCAPE (PTY) LTD
TICHAWONAI MUTASA
IBV INTERNATIONAL VAULTS
STRYDOM, J
JUDGMENT
5
45th Respondent
45th Respondent
4 7th Respondent
48th Respondent
49th Respondent
[1] This is the anticipated return day of an order obtained ex parte by the National
Director of Public Prosecutions ("the NDPP") against various defendants and
respondents. There is further before Court an application in reconvention filed
by the 39th respondent ("Gecelter"), the 40th respondent ("Kahn"), the 41 st
respondent ("Wendy Kahn") and the 42nd respondent ("Klotz") (the applicants
in reconvention, but collectively referred to as the "four respondents" in this
judgment) against the NDPP, the applicant in convention, for the setting aside
of the restraint order which was obtained in the ex parte application. The four
respondents seek further ancillary orders.
[2] On 24 March 2025, the NDPP obtained the restraining order ("the restraint
order") pursuant to the Prevention of Organised Crime Act 121 of 1998
("POCA"), following an alleged large-scale theft and money-laundering scheme
perpetrated by the defendants (accused in the criminal trial) in this matter. The
defendants are the individuals or entities who allegedly orchestrated a theft and
related crimes, and the respondents are additional parties who allegedly hold
assets or funds subject to restraint.
[3] The application of the four respondents is for the discharge of the restraint order
granted by Sutherland DJP on 24 March 2025. The application for the discharge
6
was brought on an urgent basis, in terms of rule 6(12)(c). A reconsideration of
the order is sought; alternatively , the return hearing is anticipated in terms of
section 26(3)(c) of POCA, alternatively rule 6(8) of the Rules of Court.
[4] The notice of motion in the provisional restraint application is divided into Part
A and Part B. Part A deals with the granting of the provisional order in terms of
section 26 of POCA, pending a further order of this Court. In Part B an order is
sought for the provisional order to be confirmed and made final pending the
outcome of any proceedings for a confiscation order that may follow upon
convictions in a c riminal trial. Part B was postponed sine die; however, the
affected parties could, pursuant to the terms of section 26(3)(c) of POCA,
anticipate the return date on not less than 24 hours' notice.
[5] The restraint order was served on the four respondents on or about 20 June
2025.
[6] The four respondents were provided with the court process via email on 31 July
2025. A secure link to download and access the documents was also sent to
the four respondents .
[7] As the order was granted, ex parte, Rule 6(8) further becomes applicable, which
provides that any person against whom an ex parte order was granted may
anticipate the return date upon the delivery of not less than 24 hours' notice.
[8] The subject matter of the application pertains to property listed in the schedule
of assets attached to the restraint application.
[9] The NDPP avers that the property constitutes realisable property as defined in
sections 14 and 16 of POCA, alternatively, constitutes affected gifts, as defined.
[1 O] Gecelter, Kahn, and Klotz are members of Eastgate Universal Stamp and Coins
CC ("EUSC"), which entity is not a defendant or respondent in this matter. I will
address the role EUSC played in this matter later in this judgment. Wendy Khan
is the spouse of Kahn and not a member of EUSC. EUSC is a coin and metals
trading business.
7
[11] The ex parte order, issued on 24 March 2025, appointed a curator bonis with
the power to identify, secure, and hold assets pending the outcome of forfeiture
proceedings . The order authorised the curator bonis to take control of funds in
any bank accounts forming part of the restrained property, to freeze or
otherwise hold those funds. Pursuant to this order, the curator bonis placed
holds on numerous accounts and assets, including those of the 4 respondents .
[12] In terms of paragraph 1.47 of the ex parte order, the respondents were ordered
to disclose to the curator bonis on affidavit, in terms of section 26(7) of POCA,
certain information about all the property referred to in paragraph 1.47 of the
order within 10 days of service of notice of the order.
[13] The four respondents ' personal bank accounts remain frozen under the
curator's control. Furthermore , the NDPP's papers reveal that the Respondents '
personal assets, including assets acquired long before the alleged crime, have
been restrained. What was restrained, according to annexure "A" to the restraint
order, as far as the four respondents are concerned , was the Kahn family's
residential property (Erf 8, No. 75 Nicholson Road, Sandringham,
Johannesburg), registered in the name of Wendy Kahn and vehicles. Their bank
accounts were frozen.
[14] Depending on whether the ex parte application of the applicant was brought on
an urgent basis, Rule 6(12)(c) might also be applicable. This rule provides that
a person against whom an order was granted in such person's absence in an
urgent application may, by notice, set down the matter for reconsideration of
the order. It should, in this regard, already be noted that it is not common cause
between the parties whether the ex parte application was launched on an urgent
basis or not. On the face of the notice of motion in the ex parte application, there
is no prayer requesting the Court to deal with the application on an urgent basis.
is no prayer requesting the Court to deal with the application on an urgent basis.
[15] The four respondents ' application in reconvention was brought on an urgent
basis, pursuant to the terms of Rule 6(12)(c) of the Rules of Court, alternatively,
Rule 6(8), alternatively, an application in terms of Section 26(3)(c) of POCA In
this application , the following relief is sought:
1. That the application should be dealt with as an urgent application .
8
2. Reconsideration and discharge of the restraint order granted by
Sutherland DJP on 24 March 2025, alternatively, anticipation of the
return day and discharge of the order.
3. That the curator bonis appointed under the provisional order be directed
forthwith to release all assets under restraint of the four respondents,
and that holds placed on their bank accounts be lifted immediately.
4. That the NDPP pay the cost of this application on an attorney and client
scale in the event of opposition.
[16] Ex parte applications pursuant to the terms of POCA are generally moved in
chambers and are presided over by the Deputy Judge President, or by a judge
to whom the matter is allocated, and do not appear on any urgent court roll. In
my view, these matters cannot always be regarded as urgent. In my view, the
ex parte application was not brought by way of urgency, meaning that a
reconsideration of the ex parte order as envisaged in Rule 6(12)(c) is not a
remedy available to the respondents.
[17] This does not mean that the respondents could not have anticipated the return
date urgently. Rule 6(8), Section 26(3)(c) and paragraph 8 of the ex parte order
provided for a right to approach the Court on 24 hours' notice for the setting
aside of the provisional restraint order. The order was granted on 24 March
2025, and the respondents were served with the provisional order on 20 June
2025. On 11 July 2025, the respondents filed a notice of opposition to the
restraining order. During August 2025, the answering affidavits were filed
simultaneously with an urgent application in reconvention, to be heard on 9
September 2025. The matter was postponed on this date. One of the reasons
for the postponement was to obtain a special allocation from the Deputy Judge
President. The allocated date was in the urgent court for the week of 8 to 12
December 2025.
[18] I already dealt with the urgency of the matter in a short ex tempore judgment in
[18] I already dealt with the urgency of the matter in a short ex tempore judgment in
which I found that the matter was sufficiently urgent to be considered by the
urgent court. I formed the view that the provisions allowing a 24-hour period of
anticipation already indicate that this kind of matter should be heard urgently.
9
The relief obtained was draconian, and bank accounts were frozen. It was
argued that the matter could not be heard in an urgent court, as the disclosure
of assets had not been made to the satisfaction of the curator bonis. Further,
the NDPP was still analysing the voluminous documents. This may be a
consideration, but in this matter, almost six months have passed since the ex
parte order was served on the respondents. An indefinite delay was not
acceptable in this case. I was not convinced that substantial redress may be
obtained at a later stage if the order is discharged in the normal course. A party
whose bank accounts are frozen is placed in a compromised position. It would
be difficult to deal with day-to-day financial transactions. The longer this
situation prevails, the longer a party will be prejudiced. Considering this, the
Court found that the matter was sufficiently urgent to be heard in an urgent
court. A decision is required on whether the provisional order should be
discharged or made final.
[19] As stated above, the original application was not obtained on an urgent basis.
Therefore, I am going to adjudicate this matter based on an anticipated return
date. This does not mean that the Court is barred from considering whether
sufficient evidence was presented by the NDPP to, on a prima facie basis,
obtain the provisional order in the first place. Full sets of affidavits, including
supplementary affidavits, were exchanged, and the matter should be dealt with
as an anticipation of the return date. The Court will consider whether the NDPP
made out a case, on a balance of probabilities, for the grant of a final restraint
order. If not, the provisional order stands to be discharged.
[20] A return date was not provided, as the matter was postponed sine die. It should
be noted that a return date should have been provided in the notice of motion,
as this is required in terms of section 26(3)(a) of POCA. Nothing turns on this,
as this is required in terms of section 26(3)(a) of POCA. Nothing turns on this,
as the non-existent return date, or put differently, the unknown future date, has
been anticipated. Moreover, the respondents filed an application in
reconvention. Thus, I will consider whether the interim order should be
discharged or made final, and, simultaneously, consider the application in
reconvention.
10
[21] A summary of the factual matrix against which the ex parte order was granted
should be provided.
[22] Northern Spark Refinery (Pty) Ltd ("NSR") and related entities were in the
business of refining gold (hereinafter collectively referred to as the
"complainants ").
[23] Monies were stolen from the complainants and were unlawfully transferred to
various entities, including Lateotorque (Pty) Ltd ("Lateotorque"), NL Traders
(Pty) Ltd (NL Traders), Esibonga Investments (Pty) Ltd ("Esibonga"), and AMFS
Solutions (Pty) Ltd ("AMFS"). (To these entities reference would be made
collectively as "the intermediary entities").
[24] The unlawful activities were committed by employees and other people close
to the complainants. The ten people arrested and charged with participating in
these unlawful activities are the defendants in this matter.
[25] The intermediary entities paid over substantial amounts to various businesses,
either to buy gold coins or otherwise. The NDPP's case is that this was done as
part of a money-laundering process in contravention of POCA Funds were paid
to some respondents and to others. One of these entities was EUSC.
Substantial amounts of money were paid into its bank account. Some of these
funds received into EUSC's bank account were transferred to other accounts
held by it.
[26] Before this Court, the four respondents did not dispute the core of the NDPP's
prima facie case against the actual perpetrators of the theft (the defendants
herein). In outline, the NDPP alleges that a group of defendants
misappropriated or stole a large sum of money and then sought to launder or
convert it into portable assets, such as gold coins (in particular, Krugerrands).
It appears that some of the coins were melted down again into gold. Several
intermediary entities were used to facilitate this conversion of stolen funds into
Krugerrands. It is common cause that the intermediary entities were among the
Krugerrands. It is common cause that the intermediary entities were among the
vehicles through which the stolen money was channelled . A substantial quantity
of Krugerrand gold coins was purchased prima facie with the stolen funds, as a
means of laundering the money or converting it into a safer asset. The four
11
respondents' case is that this happened entirely unbeknownst to them, as
EUSC was in the business of selling Krugerrands and delivered value for the
money received from the intermediary entities through an agent they had
previously dealt with, named Mr. Sujith Sheik Amod (Mr. Sujith).
[27] Crucially, many of those Krugerrand purchases were made through EUSC, the
business operated by Respondents 39, 40, and 42. The NDPP's founding
affidavit and annexures document payments flowing from the intermediary
entities into accounts associated with EUSC, followed by the delivery of
Krugerrand coins. For example, the NDPP's papers show that Lateotorque and
related companies transferred funds that were ultimately used to buy gold coins
from EUSC. What is disputed is the value of the gold coins provided, if
compared to the amounts received. The Respondents, in their answering
papers, do not contest these transactions. They acknowledge that the cited
payments were prima facie made and that EUSC fulfilled those orders by selling
and delivering Krugerrands. Indeed, it is a matter of record that EUSC (and
similarly, other dealers selling gold coins) was used as a source of Krugerrands
for the laundering scheme, a scheme, the respondents allege, they were not
aware of. The respondent alleged that EUSC purchased the Krugerrands from
Rand Refinery and sold them to Mr. Sujith at a markup of only ,08% on the
purchase price. Accordingly, it was denied that the payments constituted
affected gifts as contemplated in sections 12, 14, and 16 of POCA. It was
denied that the four respondents were in possession of realisable property, as
defined in POCA.
[28] Thus, to obtain a final restraint order, the NDPP had to show, on a balance of
probabilities, that the four respondents received affected gifts which constituted
realisable property.
The legislative framework
[29] Restraint orders fall within the ambit of Chapter 5 of POCA, which deals with
[29] Restraint orders fall within the ambit of Chapter 5 of POCA, which deals with
civil recovery of property. All proceedings under Chapter 5 are civil, not criminal,
and depend on the outcome of the criminal case. Chapter 5 proceedings run
parallel with the criminal case.
12
[30] It speaks for itself that the finalisation of criminal proceedings may take years
to be finalised. Accordingly, the proceeds of crime should be secure pending
the finalisation of the criminal proceedings.
[31] The primary objective of POCA is to ensure that criminals do not benefit from
their crimes by removing their ill-gotten gains. It achieves this, in turn, by
providing for the restraint, confiscation, and forfeiture mechanisms under
chapters 5 and 6 of the POCA.
[32] Chapter 5 of POCA, which is relevant for the present proceedings, provides for
the mechanism whereby a defendant's benefit derived from crime is confiscated
and forfeited to the State.
[33] To this end, section 18(1) of POCA empowers a court that has convicted a
defendant to enquire into any benefit which may have been derived from the
conviction offences. If such a court finds that a defendant has benefited from
the convicted offences, it may, in addition to the sentence, make an order
against such a defendant for the payment of an amount to the State. This is
referred to as a confiscation order under POCA.
[34] Section 25 of POCA deals with cases in which restraint orders may be made.
Section 25 provides as follows:
"(1) A High Court may exercise the powers conferred on it by section 26(1)
(a) when-
(i) a prosecution for an offence has been instituted against the defendant
concerned ;
(ii) either a confiscation order has been made against that defendant or it
appears to the court that there are reasonable grounds for believing that
a confiscation order may be made against that defendant; and
(iii) the proceedings against that defendant have not been concluded; or
(b) when-
(i) that Court is satisfied that a person is to be charged with an offence; and
(ii) it appears to the court that they are reasonable grounds for believing that
a confiscation order may be made against such person.
13
(2) where the High Court has made a restraint order under subsection 1 (b), that
court shall rescind the restraint order if the relevant person is not charged within
such period as the court may consider a reasonable ."
[35] As section 25 refers to a defendant, the use of this word in this section should
be further scrutinised as a defendant is defined in section 12 of POCA A
"defendant" means "a person against whom a prosecution for an offence has
been instituted, irrespective of whether he or she has been convicted or not,
and includes a person referred to in section 25 (1 )( b)"
[36] Thus, a defendant, as defined, is not only a person against whom a prosecution
has been instituted but also a person referred to in section 25(1 )(b). The
definition of "defendant" in Chapter 5 of POCA cross-references to this section,
which provides that a High Court may exercise the powers conferred on it by
section 26(1) (the making of a restraining order). Section 25(1 )(b), quoted
hereinbefore, provides that a defendant includes a person in relation to whom
a court is satisfied that such person is to be charged with an offence, and it
appears to the court that there are reasonable grounds for believing that a
confiscation order may be made against such person.
[37] In this matter, it is undisputed that ten people were charged and would fall in
the category of defendants as defined. Accordingly, section 26 can be applied
to them as charged persons. This was not disputed by the four respondents in
this Court. Section 26 can also be applied to persons who fall in the category of
the broader definition of "defendant". Proof would be required that there exist
reasonable grounds for believing that a confiscation order may be made against
such persons.
[38] Consequently, section 25 deals with defendants as defined.
[39] Section 26 specifically addresses the power to obtain restraint orders in court.
Section 26(1) of the POCA provides that the NDPP may, by way of an ex parte
Section 26(1) of the POCA provides that the NDPP may, by way of an ex parte
application, apply to a competent High Court for an order prohibiting any
person, subject to such conditions and exceptions as may be specified in the
order, from dealing in any manner with any property to which the order relates.
14
It is important to note that section 26 does not limit its applicability to
"defendants " but provides that a restraining order may be obtained against any
person. For purposes of this application , it may include the four respondents if
the requirements of the section are proven.
[40] A restraining order can only be made in respect of "realisable property ". Section
26(2) provides that a restraining 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;
(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.
[41] Consequently , the next question for consideration is whether the four
respondents , who undoubtedly fall within the category of "any persons " referred
to in section 26(1 ), hold "realisable property " as defined in section 14 of POCA.
[42] "Realisable property" is defined in section 14 of POCA to mean:
"(a) any property held by the defendant concerned ; and
(b) any property held by a person to whom that defendant has directly or indirectly
made any affected gift."
[43] The first observation is that realisable property refers to any property held by a
defendant , not only property derived from the proceeds of crime. At the
confiscation order stage, a court would consider benefits received from
offences and determine which portion of the realisable property stands to be
confiscated, provided that the person is a defendant as defined.
[44] Realisable property further includes property held by a person to whom the
defendant has directly or indirectly made any affected gift.
[45] Thus, any property of a defendant constitutes realisable property. As far as
other persons are concerned, who are not defendants , their property would also
other persons are concerned, who are not defendants , their property would also
be regarded as realisable property, depending on whether any property is held
15
by a person to whom a defendant has directly or indirectly made any affected
gift.
[46] As section 14 refers to a defendant, the definition of "defendan t" yet again
becomes relevant, as a restraining order can only be made if any property is
held by a defendant , or if a defendant has directly or indirectly made an affected
gift to a person.
[47) It is the NDPP's case that the defendants (individuals who have been criminally
charged) in this matter indirectly made affected gifts to the four respondents.
The flow of funds went from the defendants, through the four intermediary
companies , to EUSC. Then, from EUSC, indirectly, to the four respondents, as
three of them were members of the close corporation that constituted EUSC.
[48] EUSC has not been indicted in this matter and is not even a respondent. The
case made out by the NDPP is not that EUSC is a "defendant " (as defined) in
this matter. If EUSC were to be classified as a defendant , it would have made
a huge difference to its position, as then the question relating to the affected gift
would have become superfluous, as realisable property includes "any property
held by a defendant ."
[49] That this would be the position is clear, having regard to the definition of
"defendant " in section 12 of POCA, as alluded to hereinabove .
[50) It was not properly explained why EUSC is not a defendant. EUSC was not
even cited as a respondent. It was only stated that EUSC might be charged
later. Does this render EUSC as a defendant as defined? The Court must be
satisfied that EUSC would be charged with an offence. The mere possibility, or
allegation on behalf of the NPPA, that EUSC might be charged, would not be
sufficient. The only inference that can be drawn is that at the stage when the ex
parte order was sought, the NDPP was not satisfied that it had sufficient
evidence to obtain the conviction of EUSC. This is still the position, having
regard to the further affidavits filed.
regard to the further affidavits filed.
[51) It was argued that EUSC knew, or reasonably must have known, that the funds
flowing into its bank account were the proceeds of crime and were being
16
laundered. This argument was underpinned by evidence pointing to large sums
of money paid into the EUSC account, whereby EUSC's turnover became
substantially higher than usual, and by the use of a middleman or agent.
[52] This Court is not satisfied that EUSC, on the evidence before the Court, would
be charged with an offence and that there are reasonable grounds for believing
that a confiscation order would be made against EUSC. The Court should not
speculate about this. If the evidence against EUSC was so strong it begs the
question why EUSC was not charged and was not cited in these proceedings
as a defendant. Moreover, the case of the NDPP is premised on the basis that
EUSC received "affected gifts" from the defendants, and that the four
respondents, indirectly, received same.
[53] This would mean that EUSC is not a "defendant " as contemplated in section
14. EUSC falls in the category of "a person" to whom a defendant has directly
or indirectly made an affected gift as contemplated in section 14(1 )(b) of POCA
[54] The NDPP did not allege that the four respondents were involved in the theft or
that they knew the funds use9 to buy the coins were illicit. They have been cited
as civil respondents (property holders) rather than as defendants. Unlike the
first ten defendants (who face criminal prosecution) , the four respondents are
not accused of fraud, theft, or money laundering or any other crime themselves .
Nowhere in the NDPP's affidavits are these respondents said to have had
actual knowledge of the criminal source of the funds. It was stated that there
are reasonable grounds to infer that they knew the funds originated from an
illicit source.
[55] It was argued that it could not be inferred on reasonable grounds that the four
respondents knew that the funds paid to EUSC were proceeds of crime. The
four respondents maintained that they acted in good faith and had no reason to
suspect that the funds used by the tainted entities to purchase coins from EUSC
suspect that the funds used by the tainted entities to purchase coins from EUSC
through the entities of Mr. Sujith, 702 Jewellers, and Oro Diamante were
proceeds of crime.
[56] The four respondents are not charged with any offence. On the evidence
currently before the Court, the Court is not satisfied that the four respondents
17
would be charged or that a confiscation order may be made against them.
Thus, the four respondents are not to be regarded as defendants. The Court
will consider whether a defendant indirectly made an affected gift to the four
respondents, via EUSC. If so, any property held by the four respondents
becomes realisable property.
[57] The only evidence before the Court is that large sums of money were paid to
EUSC by the intermediary entities. Mr. Sujith or his businesses did not make
the payments, but he bought the gold coins. Currently, these intermediary
entities are not defendants in the sense that they have been charged. On the
evidence before the Court, however, it is alleged that these entities were
created by the defendants to launder illicit funds. The four respondents did not
refute this. Consequently, the Court is satisfied that the intermediary entities
were used to launder funds to third parties. In my view, these intermediary
entities can, in any event, be regarded as defendants as defined.
[58] The Court must now consider whether the NDPP has shown that the four
respondents indirectly received affected giftls.
[59] "Affected gift" is defined in section 12 of POCA and means any gift-
"(a) made by the defendant concerned not more than seven years before the fixed
date; or
(b) made by the defendant concerned at any time if it was a gift-
(i) of property received by that defendant in connection with an offense
committed by him or her or any other person; or
(ii) of property, or any part thereof, which directly or indirectly represented in that
defendant's hands property received by him or her in that connection ... "
[60] A "giff' becomes "affected" if it is proceeds of crime. But what constitutes a
"gift"?
[61] A "gift" is defined in section 16 of POCA as follows:
"(1) For the purposes of this chapter, a defendant shall be deemed to have made
a gift if he or she has transferred any property to any person directly or indirectly
18
for a consideration the value of which is significantly less than the value of the
consideration supplied by the defendant .
(2) For the purposes of section 20(2), the gift which a defendant is deemed to have
made shall consist of that share in the property transferred by the defendant which
is equal to the difference between the value of that property as a whole and the
consideration received by the defendant in return."
[62] There is no evidence that any of the defendants directly transferred affected
gifts to the four respondents . It is a common cause that property, whether
affected or not, was directly transferred to EUSC. Whether what EUSC received
constituted affected gifts would depend on the value of the quid pro quo EUSC
provided in exchange for the payments.
[63] The 39th, 40th, and 42nd respondents were members of EUSC. As they stood to
benefit from any gifts made to EUSC, the Court would accept that, if such gifts
were made, they indirectly received them.
[64] The position of the wife of the 40th respondent, Ms. Wendy Kahn, is on a
different footing. If EUSC received an affected gift, it was not proven that she
indirectly received an affected gift. There is insufficient evidence of money
flowing from EUSC to Ms. Khan. This would mean that the NDPP has failed to
make out a case against her that she indirectly received an affected gift.
[65] To ascertain whether the 39th, 40th and 42nd respondents indirectly received
"affected gifts" it should be considered whether it could be deemed that a
defendant made a gift to EUSC by transferring property to a defendant against
payment received, whilst the value of the payment was significantly higher that
the value of what was purchased. Only if the counter consideration was
significantly less than the payment, then the difference between the payment
and the counter consideration would constitute a gift. Without evidence of this
comparison, it would not be possible to find that a payment represents a gift.
comparison, it would not be possible to find that a payment represents a gift.
[66] The NDPP carries the onus to present evidence of any alleged affected gift
(particularly that the EUSC gave no or inadequate value in return) and the duty
of full disclosure in provisional restraint applications under POCA In restraint
applications involving third-party recipients (respondents) of alleged affected
19
gifts, the NDPP cannot obtain a provisional restraint merely by showing that
money flowed from a defendant to a third party, without evidence of a lack of
proper value given in return.
[67] It is therefore clear that the core foundational allegation which had to be proven
by the NDPP on the papers at the provisional order stage, would be that EUSC,
and indirectly the four respondents, firstly received "gifts" as defined in Section
16 of POCA and secondly that such gifts were "affected' as defined by Section
12 of POCA, in that it constitutes property received by a defendant in connection
with an offence. The value of the affected gift then had to be established from
the NDPP's papers relating to EUSC. To the extent that any of the respondents
received an affected gift, realisable property belonging to such respondent
would be restrained to the value of the affected gift.
[68] On behalf of the four respondents , it was submitted that it was not proven that
any such affected gifts were received by EUSC or any of the respondents 39 to
42, directly or indirectly, from the defendants.
[69] The Court was referred to the judgment of the Supreme Court of Appeal in
Procopos v NDPP 2009 (1) SACR 468 (SCA), 1 where it was found that where
a defendant obtained money connected to an offense, the mere flow of that
money from such defendant to a respondent does not in itself constitute an
affected gift. It first must be established whether the flow of money from such
defendant to such respondent, in fact, was a gift as defined in Section 16 of
POCA, in that the respondent did not give proper value to such defendant for
the monies so received. The position therefore simply is that if the receipt of
money by the respondents cannot be established as an affected gift, and if so
what the value of such affected gift was, then the relevant respondent will not
be proven to be in possession of any realisable property in terms of Section 14
be proven to be in possession of any realisable property in terms of Section 14
of POCA and that no property of such respondent will therefore be subject to
restraint.
1 Procopos v NDPP 2009 (1) SACR 468 (SCA).
20
[70] If EUSC gave full or market-related value back to the accused, then the transfer
is not an "affected giff' ; EUSC, in that scenario, is more akin to a bona fide
purchaser or an intermediary, rather than a gratuitous beneficiary of the crime.
[71] In Procopos, supra, the SCA held in paragraph 35 that the NDPP "has to show"
that the person against whom the order is to be made received an "affected
giff'. It outlined three elements that must be shown before the deeming
provision in Section 16 can operate: (1) a transfer of property from the
defendant to the third party; (2) some form of consideration or value given by
that third party to the defendant (if any) in return; and (3) proof that such
counter-consideration (by the respondent) was worth significantly less than the
value of the property transferred (by the defendant). Only if these facts are
established can the Court conclude that the third party received an
undervalued, crime-tainted gift ("affected giff') , making their property
"realisable" under POCA.
[72] The only facts at the time placed before court at the provisional stage was the
flow of the amounts from Lateotorque; NL Traders and Esibonga to the
accounts of EUSC without evidence relating to the flow of monies out of the
account of EUSC to Rand Refineries, from where gold coins were purchase, to
establish whether the value given indirectly to the defendants in terms of
Krugerrands purchased was "significantly less than the value of the
consideration supplied by the Defendant". (Section 16 of POCA).
[73] Whilst it was not alleged that no value was given in return for payment, no
analysis is found of the value EUSC provided in exchange for the monies
deposited in EUSC's bank account. The witness Mankwe, on behalf of the
NDPP, states that he detected a pattern of transactions which he then sets out,
which "pattern" supports the version of the Respondents 39; 40 and 42 in that
when deposits were received, "a portion or the whole amount will be transferred
when deposits were received, "a portion or the whole amount will be transferred
to Rand Refinery ". For purposes of the application, a proper investigation and
analysis of the EUSC bank accounts and transactions should have been
conducted by the NDPP (Asset Forfeiture Unit (AFU)) during the course of an
AFU investigation, which started in 2022. An investigation of the books of Rand
21
Refinery would have indicated the extent of the money paid in exchange for
Kruger Rands.
[74] It appears from Mankwe's supporting statement that he alleges that he found
some discrepancies , for instance, relating to what he considers an apparent 2%
markup on the cost price in favour of EUSC and not the 1 % alleged by
Respondent Lance Kahn (40th Respondent). It should be stated that it is clear
that a proper audit of the books of EUSC by the NDPP (AFU) should have been
conducted. The 39th , 40th, and 42nd respondents, on behalf of EUSC stated that
they in fact, invited the NDPP to do such reconciliation. However, the NDPP
chose to approach this Court on an ex parte basis on the 24th of March 2025
with no proof that Respondents 39 to 42 received any "affected gifts" directly or
indirectly from the Defendants. The important fact is that nowhere in the
founding papers filed on behalf of the NDPP is any mention made of the
business structure and functioning of EUSC, the flow of money from EUSC
once it was received from the mentioned front companies, and the purchase of
Krugerrands on behalf of the said companies as facilitated by Mr. Sujith.
[75] Under South African law, the threshold the NDPP must meet for a restraint
order is lower than that required for eventual confiscation; the NDPP need not
prove the accused's guilt or benefit beyond a reasonable doubt at this interim
stage. In NDPP v Rautenbach 2005 (4) SA 603 (SCAJ,2 the SCA explained that
it is plain from the language of POCA that the court is not required to satisfy
itself that the defendant is probably guilty of an offence, and that he or she has
probably benefited from the offence in order to grant a restraint. Instead, it
suffices if there are reasonable grounds to believe a confiscation order may be
made against the defendant in the future. In practical terms, this means that,
for a defendant's own assets, the NDPP needs only to show that there is a
for a defendant's own assets, the NDPP needs only to show that there is a
pending or imminent prosecution and a reasonable likelihood that the accused
might be convicted and found to have benefited from the crime. See the case
of NDPP v Kyriacou 2004 (1) SA 379 (SCA),3 which set the standard that
2 NDPP v Rautenbach 2005 (4) SA 603 (SCA) .
3 NDPP v Kyriacou 2004 (1) SA 379 (SCA) .
22
confirmation of a restraint requires a prima facie case or reasonable grounds
for a possible confiscation order, rather than final proof of guilt.
[76] However, when extending a restraint to third-party respondents on the basis of
affected gifts, the NDPP bears the onus of proving the existence of the gift itself.
This Court cannot simply assume that any transfer of funds to a third party is a
tainted gift; it must be satisfied (at least on the evidence before it) that the
statutory criteria for an "affected giff' are met. Thus, the NDPP must present
facts establishing, prima facie, that the third party received the property without
giving proper value in return. If the NDPP fails to provide such evidence, the
Court has no basis to classify the third party's assets as "realisable property"
under Section 14(1) (b).
[77] The Court will accept that the NDPP demonstrated that the criminal docket
contains compelling evidence against the defendants, to the effect that they
committed crimes of theft and/or money laundering and that a confiscation order
would follow.
[78] Before this Court, the issue of whether the provisional restraint order was
granted on reasonable grounds against the defendants, on the belief that a
confiscation order would be granted, was not seriously contested. The
contentious issue was whether it was shown, on a prima facie basis, that the
four respondents indirectly received affected gifts. This could only be shown by
comparing the value of that which was received with the value of that which was
given in return.
[79] It is the NDPP's case that EUSC, linked to the four respondents, received
approximately R1 .4 billion from four intermediary companies. It was argued that
the only inference that could be drawn, on a balance of probabilities, was that
there existed a relationship between the intermediary entities and EUSC and
its members. It was argued that the Court must accept that the four respondents
its members. It was argued that the Court must accept that the four respondents
were aware of the money-laundering scheme, and that the allegation that Mr
Sujith was the person with whom they exclusively dealt should be rejected. It
was submitted that the four respondents' versions amount to a bare denial and
that they are not innocent. Further, they were, in fact, part of the syndicate that
23
received proceeds from criminal activities and laundered money by purchasing
Krugerrands from Rand Refinery.
[80] Much was made of Mankwe's evidence that, once funds were received from the
intermediary entities, they were transferred to an EUSC call account, and then
smaller amounts were transferred back to the original account from which the
money was received. It was argued that this evinces the hiding of funds as part
of a money-laundering scheme. It is unclear how moving funds among accounts
within the same entity could be described as "hiding" or "laundering" funds. The
origin of the funds can be determined by tracing their source. All these
transactions would be traceable and would reflect on bank statements.
Moreover, EUSC is not cited as a defendant or a respondent in this application.
No order was sought to restrain any property of EUSC. The reason for this was
never properly explained in the papers or during the argument before this Court.
[81] It was argued that the evidence of Mankwe revealed that the applicants
benefited from unlawful activities. Investigations revealed that the intermediary
entities transferred funds to EUSC. AMFS transferred over R800 million,
Lateotorque transferred approximately R290 million and Esibonga transferred
approximately R230 million to EUSC. Overall, it was argued that EUSC
received proceeds of unlawful activities in the amount of approximately R 1.4
billion.
(82] The applicants do not dispute in their papers that EUSC received the money.
The case of the four respondents is that the value was provided for the cash
received by delivery of Kruger Rands. It is not admitted that the four
respondents received any money.
(83] There is insufficient evidence regarding the value of what EUSC supplied to the
defendants. The assertion that the invoices supplied by the respondents,
representing EUSC, do not equal the amount received by EUSC would not be
sufficient to determine whether there was a significant difference between the
sufficient to determine whether there was a significant difference between the
value of receipts and the value of supplies. The mere proof of the flow of funds
would not be sufficient. This Court must be satisfied that a gift was made which
constituted an affected gift. The statement made by Mankwe in his affidavit on
24
behalf of the NDPP that the amount received by EUSC of approximately R1 .4
billion does not reconcile with or correlate with the value of coins delivered falls
short of showing that a gift was made. Moreover, that would ignore the version
of the four respondents that they supplied Kruger Rands to the value of the
money received, less a small percentage.
[84] Further affidavits filed on behalf of the NDPP, namely the supplementary
affidavit of Maphumulo and the supporting affidavits of Skosana and
Rankuoatsana, revealed that the four respondents did not disclose all the bank
accounts linked to them, and that there are additional suspicious transactions
linked to them. It was argued that they did not make full disclosure as required
by the provisional order. It was further shown that the four respondents have
accounts they have not revealed to the curator bonis. All of this may be true,
but this does not prove the receipt of an affected gift. Without such evidence a
restraint order could not have been made.
[85] It was argued that the NDPP's answering affidavit, supplementary affidavit and
supporting affidavits entail persuasive evidence that the four respondents
indeed received proceeds of unlawful activities. It was further submitted that
EUSC, through its representatives , not only received but also used the
proceeds of unlawful activities by purchasing gold coins in an attempt to conceal
them. The question remains, however, whether the payments constituted gifts.
[86] In NOPP v Tshamase and Others 2023 JDR 3004 (ECP)4 The NDPP had
obtained a provisional restraint order in a corruption case (involving a
municipality's transport project) not only against the accused officials, but also
against certain close corporations and trusts linked to them. Those entities (the
respondents) were, in effect, third parties who had received or held stolen
funds. On the return date, the court found that the NDPP's evidence fell short
funds. On the return date, the court found that the NDPP's evidence fell short
of proving that those respondent entities held "affected gifts." Dreyer AJ
emphasized that the NDPP must prove, on a balance of probabilities, that a
particular respondent received an affected gift from the defendant to confirm a
4 NDPP v Tshamase and Others 2023 JDR 3004 (ECP).
25
restraint. Ultimately, the High Court discharged the provisional restraint against
several third-party entities, expressly holding that the NDPP failed to show on
a balance of probabilities that [those entities] received an affected gift from any
defendant.
[87] In other words, without facts demonstrating a gratuitous or undervalued
transfer, those respondents' assets could not lawfully be restrained under
Section 26. This case is a clear authority that the NDPP cannot simply infer an
affected gift from the receipt of funds - it must present facts from which the
Court can conclude (even prima facie) that the recipient supplied significantly
less value in return. If the NDPP provides no such facts, the provisional
restraint (even if initially granted ex parte) is liable to be discharged for lack of
an essential jurisdictional element.
[88] I find that the NDPP failed in its attempt to prove to the court that EUSC did not
give value to the defendants herein, to such an extent that it could be found that
such value was significantly less than the value of the consideration emanating
from the defendants . Indirectly, the same would apply to the three respondents.
As decided by the Supreme Court of Appeal in the matter of Procopos , supra,
it is not good enough for the NDPP to prove that tainted monies flowed indirectly
to a respondent without proving that no reciprocal reasonable value was given
by such respondent to a defendant. The provisional restraint order, therefore,
stands to be set aside by this Court, and the relief sought in the application in
reconvention should be granted.
[89] I am not of the view that a punitive cost order, as requested on behalf of the
four respondents , is unwarranted . A cost order must follow the result.
[90] The following order is made:
1. The usual forms of notice and service be dispensed with and the matter
be heard as one of urgency in terms of Rule 6 (12) of the Uniform Rules
be heard as one of urgency in terms of Rule 6 (12) of the Uniform Rules
of Court, as well as in terms of clause 8 of the Order of Sutherland DJP
in the matter.
26
2. The Order of Sutherland DJP dated the 24 of March 2025, and the
provisional Restraint Order granted in terms of the said Order is hereby
discharged, and the said Order is set aside relating to the 39th , 40th, 41 st,
and 42nd Respondents.
3. The Curator Bonis appointed under the provisional Restraint Order is
hereby directed to forthwith release all assets of the 39th to the 42nd
Respondents under restraint, and any holds still in place on the bank
accounts relating to Respondents 39 to 42 or the related entity Eastgate
Universal Stamp and Coins CC.
4. The Applicant (Respondent in reconvention being the NDPP) to pay the
cost of the 39th to 42nd Respondents.
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Heard on:
Delivered on:
Appearances :
For the Applicant:
Instructed by:
For the 39th , 401h,41 st and 42nd Respondent:
Instructed by:
09 & 10 December 2025
04 March 2026
Adv. P. Louw
Adv. N. Tuntulwana
The National Prosecution Authority
Mr. P. du Plessis
BOK Attorneys