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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. 6037/2024
Of Interest
In the matter between:
SHAWN WILLIAMS N.O. APPLICANT
and
MINISTER OF FINANCE FIRST RESPONDENT
BONGANI MPELUZA SECOND RESPONDENT
UNATHI NOZUKO MPELUZA THIRD RESPONDENT
ABSA BANK LIMITED FOURTH RESPONDENT
BLAIR ATHOLL HOMEOWNERS
ASSOCIATION NPC FIFTH RESPONDENT
CITY OF TSWANE METROPOLITAN
MUNICIPALITY SIXTH RESPONDENT
DHNESHVARIN APPAVOO N.O. SEVENTH RESPONDENT
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS EIGHTH RESPONDENT
THE MINISTER OF PUBLIC WORKS
AND INFRASTRUCTURE NINTH RESPONDENT
THE REGISTRAR OF DEEDS, PRETORIA TENTH RESPONDENT
REASONS FOR ORDER
Rugunanan J
[1] On 20 January 2026, and for reasons that now follow, I granted an order
dismissing with costs the application by the applicant as curator bonis
essentially for the relief posed by the following question: Whether a court has
the competence under s 42 of the of the Prevention of Organised Crime Act 1
(POCA) to confer explicit authority on a curator bonis to dispose of property,
1 Prevention of Organised Crime Act 121 of 1998 (POCA).
subject to conditions, before a forfeiture order is made in respect of property
subject to a preservation order.
[2] A preservation order was granted ex parte in this Court on 31 July 2018
under case number 2231/2018. The order related to immovable property
described as Erf 5[...] Blair Atholl Extension 3, situated at 5[...] T[...] S[...]
Close, Blair Atholl Estate, Lanseria, Gauteng (the property). Paragraph 2 of the
order provided that:
‘The property shall be under the control of Shawn Willi ams of KPMG until the forfeiture
order is granted or the court orders otherwise.’
[3] The property was acquired by an entity Yellow Fancy Properties (Pty)
Ltd (Yellow Fancy) as registered owner and of which entity the second and
third respondents are directors. The preservation order was obtained on the basis
that Yellow Fancy acquired the property with funds realised by fraud and thus
the proceeds of unlawful activities.
[4] By letters of curatorship issued on 3 August 2018, the applicant was duly
appointed and au thorised by the Master of the High Court to act as curator
bonis of the property.
[5] Flowing from the preservation order the applicant’s founding papers
enumerate a chronicle of events that culminated in a further order granted in this
Court on 21 August 2018, in terms of which the property was declared forfeit to
the State in accordance with s 50 of the Act (the forfeiture order). 2 This order
specifically authorised the applicant to sell the property by private sale or
auction and to pay the proceeds of the sale to any bank having a bond registered
over the property, the net proceeds to be paid into the Criminal Assets Recovery
Account at the Reserve Bank.
2 Case No. 2231/2018.
[6] During September 2018 the second and third respondents, as applicants,
launched an application for the r escission of the forfeiture order. In October
2019, they sought in addition, a joinder of Yellow Fancy as third applicant.
[7] Since the launch of the application for the rescission of the forfeiture
order in September 2018, and until September 2024, the secon d and third
respondents took no steps to enrol that application. During the said period
Yellow Fancy did not pay the ownership costs in relation to the property – such
costs being the accumulated homeowner’s levies, plus municipal charges, and
the outstanding instalments on a mortgage bond registered in favour of ABSA
Bank Ltd cited herein as the fourth respondent.
[8] September 2024 marked a turning point. The forfeiture order was still
extant. Acting in accordance therewith the applicant advertised the proper ty for
sale by public auction. The auction did not proceed and the forfeiture order was
rescinded by agreement. The parties to the relevant order were the second and
third respondents (as first and second applicants, respectively) and the National
Director of Public Prosecutions (as respondent).
[9] In his founding affidavit the applicant states that he deposes thereto on
the advice of his legal representatives. In that regard he states that the legal
consequence of the rescission of the forfeiture order is tha t the preservation
order in respect of the property is revived. In heads argument, it was submitted
for the applicant that the preservation order has never been challenged and
remains extant. The second and third respondents (the opposing respondents)
did not take issue therewith and the matter was argued on the footing that the
preservation order stands.3
3 But see Knoop NO and Others v National Director of Public Prosecutions [2023] ZASCA 141 para 40.
[10] During November 2024 the applicant learnt that Yellow Fancy was at
some prior stage deregistered by the Commissioner of Companies and
Intellectual Prope rty Commission (the Commissioner). According to the
applicant, the property has become bona vacantia, and its ownership technically
vests in the State qua the Minister of Finance (the Minister), the first respondent
herein. It is mentioned in heads of argu ment for the opposing respondents that
Yellow Fancy was with effect from 28 May 2025, reinstated by the
Commissioner. The disclosure was intended to support an argument that Yellow
Fancy has not been joined in these proceedings. Considering that the disclo sure
was not properly introduced by affidavit or supported by documentary proof,
nothing further needs to be said about the joinder issue.
[11] Except for delivery by the opposing respondents of a notice in terms of
uniform rule 6(5) (d)(iii) from which the lega l issue identified at the
commencement hereof is set out, none of the other respondents have opposed
the present application.
[12] For present purposes it is convenient only to have recapitulated the
timeline of events aforementioned. A repetition of the events leading to the ex
parte application for the preservation order is unneeded and so too are details of
the market value of the property, the quantification of the accrued costs of
ownership, and rate of erosion of the equity in the property. Such detail wou ld
have been necessary had the order for the sale of the property together with
directions, as was sought by the applicant, been granted.
[13] The issue with which this Court is seized is a legal one – it being the
fundamental question whether s 42 of POCA empo wers the Court to grant an
order authorising the applicant, as curator bonis, to sell property that is subject
to a preservation order. The question, put in a different way, is whether sale
before forfeiture is permitted. The applicant contends that this i s conceivable.
The opposing respondents contend that the applicant is precluded from selling
property which is subject to a preservation order and may do so only in terms of
a forfeiture order. To do otherwise would be to act outside the legislated process
of forfeiture applications. It would have been of immense assistance to this
Court had legal argument been presented by the first and eighth respondents
(the Minister and the National Director of Public Prosecutions) seeing as they
are appointees of the C riminal Assets Recovery Committee constituted under s
65 of POCA. Organs of state are duty bound to assist the courts to ensure their
effectiveness.4
[14] In argument it was correctly submitted for the applicant that there is no
decided case specifically relating to s 42 on this question. I could find none. The
applicant approaches the matter by relying on the Supreme Court of Appeal
(SCA) decision in Mngomezulu and Others v National Director of Public
Prosecutions5 (Mngomezulu).
[15] The first appellant in Mngomezulu was charged with drug -related
offences in contravention of the Drugs and Drug Trafficking Act 140 of 1992
following which a restraint order was obtained ex parte in the High Court in
accordance with s 26 of POCA. The order prohibited the appellant from dealing
in any manner with certain property (immovables, bank accounts, vehicles, and
works of art etc) but conferred upon the curator bonis ‘the power to sell assets under
restraint in order to properly administer the assets under his control.’ 6 In the SCA, one of
the issues raised by the appellants was that they questioned the power conferred
on the curator to deal with and potentially to sell the property under restraint
prior to a confiscation order being made under s 18 of POCA. The latter section
4 Section 165(4) of the Constitution.
5 Mngomezulu and Others v National Directo r of Public Prosecutions (Mngomezulu) (446/05) [2007] ZASCA
11 (16 March 2007); [2007] All SA 979 (SCA); 2007 (2) SACR 274 (SCA).
6 Mngomezulu supra at 279b and at 280c.
provides that whenever a defendant is convicted of an offence the court
convicting the defendant may, on the application of the public prosecutor,
enquire into any benefit which the defendant may have derived from that
offence and, if the court finds that the defendant has so benefited, the court may
make an order against the defendant for the payment to the State of any amount
it considers appropriate, subject to the limit specified in s 18(2).
[16] Section 28(1)(a)(i) of POCA covers the appointment of a curator bonis in
respect of property subject to a restraint order and provision is made inter alia
that a High Court that has made a restraint order may authorise the curator ‘to
perform any particular act in respect of any of or all the property to which the restraint order
relates’. In dismissing the appeal the SCA held that the section, interpreted
according to its ordinary meaning, ‘empowers a High Court to authorise a curator to,
inter alia sell property.’7 In adopting a broadened approach to the interpretation of
the section, the court, per Streicher JA, reasoned:8
‘In terms of s 33 the powers conferred upon the High Court by sections 26 to 31, or upon a
curator bonis appointed in terms of s 28 are to be exerci sed “with a view to making available
the current value of realisable property for satisfying any confiscation order made or which
might be made”. For the reasons that follow that purpose is not defeated by the provision
entitling the curator bonis to sell or encumber the restrained property “in order to properly
administer the assets under his control” and “to pay any expenses related to restrained assets,
which would ordinarily be carried by the estate”.
The curator bonis was entrusted with the administr ation of virtually the entire estate of the
appellants. Such administration would include the maintenance of the restrained property and
the payment of expenses in respect thereof. The appellants conceded that in order to properly
the payment of expenses in respect thereof. The appellants conceded that in order to properly
administer the property e ntrusted to him the curator would have to incur expenses but
submitted that those expenses should be borne by the State. However, s 28(3)(c) provides that
a court which made an order contemplated in ss (1)(b),
7 Mngomezulu supra para 10.
8 Mngomezulu supra at 280c-281a.
“may make such order relating to the fees and expenditure of the curator bonis as it
deems fit, including an order for the payment of the fees of the curator bonis –
(i) from the confiscated proceeds if a confiscation order is made; or
(ii) by the State if no confiscation order is made.”
Again the appellants were constrained to argue for a restrictive interpretation of the phrase
“such order . . . as it deems fit”. However, the phrase would not have been used if the
intention was that the curator’s expenses up to the time that a confiscation order was made
could only be recovered from the State. Furthermore, the appellants will be benefited by the
payment of “expenses related to the restrained assets, which would ordinarily be carried by
the estate out of any assets under restraint”. In the circumstances it is unlikely that the
legislature intended to exclude an order that the curator’s expenses relating to the restrained
assets may be recovered from the restrained assets themselves.
The legislature, by using the phrase “such order . . . as it deems fit” clear ly intended to confer
a wide discretion on the High Court as to the source from which the curator could recover his
expenditure in respect of the administration of the property entrusted to him. There is no
reason why the High Court in the exercise of that discretion should not, in order to enable the
curator bonis to properly administer the realisable property entrusted to him, authorize him to
utilise the liquid assets in the estate or to turn non -liquid assets into liquid assets to the extent
that there are insufficient liquid assets. It may be that the value of the realisable property will
as a result diminish but the purpose of allowing the curator to utilize and alienate assets is to
restrict that diminution in value.’
[17] Elsewhere in the judgment Streicher JA, commented:9
‘Confirmation that a curator bonis appointed in terms of s 28 may be authorised to alienate or
‘Confirmation that a curator bonis appointed in terms of s 28 may be authorised to alienate or
utilize property which he has been appointed to administer is to be found in the
Administration of Estates Act 66 of 1965. Section 32(2) of POCA provides that save as is
otherwise provided in Cha pter 5, ie sections 12 to 36 thereof, the provisions of the
Administration of Estates Act shall with the necessary changes apply in respect of a curator
bonis appointed under the Chapter. Section 80 of the Administration of Estates Act provides
as follows:
9 Mngomezulu supra at 282c-d and 282g.
“80(1) No natural guardian shall alienate or mortgage any immovable property belonging to
his minor child, and no tutor or curator shall alienate or mortgage any immovable
property which he has been appointed to administer, unless he is authorized thereto by
the Court or by the Master under this section or, in the case of a tutor or curator, by
any will or written instrument by which he has been nominated.”
[18] And in summing up, the learned judge holds:
‘For these reasons I am of the view that a High Court may in terms of s 28(1) (a) authorize a
curator bonis appointed in terms of that section to alienate property under restraint in order to
properly administer the assets under his control.’
[19] It appears from Mngomezulu that a High Court is empowered to authorise
a curator bonis to sell property by making ‘such order . . . as it deems fit’ (s
28(3)(c)) so that practical efficacy may be given to a restraint order which
authorises a curator ‘to perform any particular act in respect of any of or all the prope rty
to which the restraint order relates’ (s 28(1)(a)(i)). The judgment intimates that this
power may be exercised prior to a confiscation order being made.
[20] Contending that s 28(1) and s 42(1) of POCA are nearly identical,
the applicant attempted to align the words ‘to do any act necessary’ (s 42(1)(a)(iii))
with the wide discretion conferred in Mngomezulu, to the words, ‘such order . . . as
it deems fit’ (s 28(3) (c)).10 From the applicant’s perspective, equivalence or
10 Quoted in relevant part sections 28 and 42 read:
‘28 Appointment of a curator bonis in respect of property subject to a restraint order
(1) Where a High Court has made a restraint order, that court may at any time –
(a) Appoint a curator bonis to do, subject to the directions of the court, any one or more of the
following on behalf of the person against whom the restraint order has been made, namely –
(i) to perform any particular act in respect of any of or all the property to which the restraint
order relates;
(ii) to take care of the said property; and
(iii) where the said property is a business or undertaking, to carry on, with due regard to any
law which may be applicable, the business or undertaking;
(b) order the person against whom the restraint order has been made to surrender forthwith, or within
such period as that court may determine, any property in respect of which a curator bonis has been
appointed under paragraph (a), into the custody of that curator bonis.’
‘42 Appointment of curator bonis in respect of property subject to a preservation of property order
(1) Where a High Court has made a preservation of property order, the High Court shall, if it deems
appropriate, at the time of the making of the order or at a later time –
uniformity in meaning would achieve th e result sought by him for this Court to
grant an order authorising him to dispose of the property before a forfeiture
order is made. In my view Mngomezulu, correctly decided on its own facts, does
not assist the applicant in aligning the respective sectio ns for achieving the
desired equivalence in meaning.
[21] In Mngomezulu, s 33 of POCA presented the starting point to the enquiry
which ultimately unpacked the legal framework for holding that the High Court
has a wide discretion to confer upon a curator bonis the authority to alienate
property under restraint. The section deals with the powers of the High Court
and a curator bonis and it includes inter alia powers to be exercised ‘with a view
to making available the current value of realisable property for sati sfying any confiscation
order made or which might be made’ (s 33(1)(a)).
[22] To be noted is that restraint orders are dealt with in s 26 of POCA. That
section together with s 33 is included in Chapter 5, Part 3. Preservation of
property orders, on the other ha nd, are dealt with in s 38 under Chapter 6, Part
2. Chapter 6, which comprises in total of parts 1, 2, 3, and 4, does not include a
provision similar to s 33(1)(a). The omission by the Legislature from Chapter 6,
Part 2 of a provision similar to s 33(1)(a) appears to be deliberate. Absent the
appropriate statutory mechanism, s 42(1) (a)(iii) cannot be aligned with s
28(3)(c), and the uniformity in interpretation for which the applicant contends,
is insupportable.
(a) appoint a curator bonis to do, subject to the directions of that High Court, any one or more of the
following on behalf of the person against whom the preservation of property order has been made,
namely –
(i) to assume control over the property;
(ii) to take care of the said property;
(iii) to administer the said property and to do any act necessary for that purpose; and
(iv) where the said property is a business or undertaking, to carry on, with due regard to any
(iv) where the said property is a business or undertaking, to carry on, with due regard to any
law which may be applicable, the business or undertaking; and
(b) order any person holding property subject to the preservation of property order to surrender
forthwith, or within such period as that Court may determine, any such property into the custody of
the curator bonis.’
[23] More than that, in Mngomezulu, it was reasoned that the power to alienate
movable and immovable property of a minor is one that a curator bonis would
normally require in order to fully administer his ward’s estate, hence the
Legislature probably intended to empower the High Court to confer th is power
on a curator bonis appointed in terms of s 28 of POCA. This must be
understood in the context of the judgment having made specific reference to s
32 of POCA, which section renders the Administration of Estates Act (the
Estates Act) applicable to C hapter 5. 11 Section 32 specifically states that the
provisions of the Estates Act shall apply in respect of a curator bonis appointed
under Chapter 5. Chapter 6 does not include a provision similar to s 32. It
cannot therefore be presumed that the Legislat ure intended to empower the
High Court to confer the power of alienation on a curator bonis appointed in
terms of s 42.
[24] To sum up, my sense is that there is no material parity between Chapter 5
and Chapter 6 of POCA. They are distinct forfeiture regimes. I n National
Director of Public Prosecutions and Another v Mohamed NO and Others 12 the
Constitutional Court explained:
‘Chapter 5 (comprising ss 12 - 36) provides for the forfeiture of the benefits derived from
crime but its confiscation machinery may be in voked only when the “defendant” is convicted
of an offence. Chapter 6 (comprising ss 37 - 62) provides for forfeiture of the proceeds of and
instrumentalities used in crime, but is not conviction based; it may be invoked even when
there is no prosecution.’
[25] A restraint order under Chapter 5 has the effect of stripping a defendant
of control or use of restrained assets pending the conclusion of imminent
criminal proceedings. 13 A preservation order under Chapter 6 is invoked
11 Mngomezulu supra para 18.
12 National Director of Public P rosecutions and Another v Mohamed NO and Others [2003] ZACC 4; 2003 (4)
SA 1 (CC) para 16.
SA 1 (CC) para 16.
13 Phillips v National Director of Public Prosecutions 2003 (6) SA 447 (SCA) at 453F.
independently of pending criminal p roceedings and its purpose is to preserve
assets pending a forfeiture application under a civil forfeiture regime. 14 The
clear exclusion from Chapter 6 of provisions similar to s 32 and s 33(1) (a) as
are contained in Chapter 5, must be viewed from that perspective.
[26] Turning to the issue raised in these proceedings, I am unable to hold that
the legislative scheme in Chapter 6, specifically s 42(1) (a)(iii) , of POCA
permits an expansive interpretation to confer on this Court a wide discretion to
grant the appl icant, as curator bonis, the authority to alienate or dispose of the
property that is subject to the preservation order. I have the impression that a
curator bonis may only dispose of property once a forfeiture order takes effect,
and that he is obliged to do so in accordance with the directions of the Criminal
Assets Recovery Committee.15
[27] A final word on costs.
[28] In the period until September 2024, the founding affidavit indicates that
the applicant met and engaged with the second respondent on behalf of Yel low
Fancy to pay the ownership costs that were steadily accumulating. The second
respondent informed him that he was working on the matter and if the costs
were not paid by December 2022 he would consent to the sale of the property.
On account of the endur ing history of the matter, the opposing respondents
contended that the applicant’s conduct over a period of several years was
dilatory and unreasonable and that he should be ordered to pay punitive costs on
an attorney and own client scale. Save for raisin g the issue in their heads of
argument, and in their rule 6(5) (d)(iii) notice, the opposing respondents did not
directly address it in an answering affidavit setting out fully the factual
considerations and circumstances that would, with cogent justificati on, inform
14 National Director of Public Prosecutions v Biru [2024] ZAECPEHC 33 para 23.
15 See s 65 read with s 56 and 57(1)(c) of POCA.
this Court’s discretion. On the papers before me I am not persuaded that there is
sufficient material that justifies the scale of costs contended for. The usual order
on the party and party scale applies.
[29] Having already granted the order of 20 J anuary 2026, I need make no
further order.
____________________________
M. S. RUGUNANAN
JUDGE OF THE HIGH COURT
Appearances:
For the Applicant: D Marais , Instructed by Kern and Partners c/o
Netteltons, Makhanda (Ref. I Pienaar), email: ilze@netteltons.co.za
For the Second and Third Respondents: L Ndinisa, Instructed by Makhanya
Attorneys c/o Mili Attorneys, Ma khanda (Ref D Mili), email:
dmili@itsnet.co.za
cc: NN Dullabh & Co, Attorneys for Eighth Respondent (Ref M
Wolmarans), email: marius@dullabhs.co.za
Date heard: 13 November 2025
Order granted: 20 January 2026
Reasons: 28 April 2026 – delivered by email at 09h30.