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[2013] ZAWCHC 155
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National Director of Public Prosecutions v Mooi and Others (23596/2012) [2013] ZAWCHC 155 (18 October 2013)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
Case
No.: 23596/2012
In
the matter between:
THE NATIONAL DIRECTOR
OF
PUBLIC PROSECUTIONS
........................................................................................................
Applicant
and
NAAYM MOOI
...............................................................................................................
First
Defendant
MOOI BROTHERS
.....................................................................................................
Second
Defendant
DELAMAINE CEDRIC DE
KLERK
..................................................................................
Third
Defendant
DELWRAY CLOTHING CC
t/a NEW MARKET
CLOTHING
...................................................................................
Fourth
Defendant
MIKO AIR INVESTMENTS
t/a
KAYDEE FINANCIAL
SERVICES
....................................................................................
Fifth
Defendant
GOLDEN MONEY MAKERS
109 CC
t/a JAYTEE
INVESTMENTS
..........................................................................................
Sixth
Defendant
YUMNIE ENTERPRISE
SOLUTIONS CC
...................................................................
Seventh
Defendant
JEROME REGINALD VAN
BLERK
...............................................................................
Eighth
Defendant
TREVOR VAN BLERK
...................................................................................................
Ninth
Defendant
PRISCILLA VAN BLERK
..............................................................................................
First
Respondent
MOHAMED ZAAID MOOI
.......................................................................................
Second
Respondent
ZULFA MOOI Third
Respondent
MOHAMED ALI MOOI
.............................................................................................
Fourth
Respondent
VAN BLERK INVESTMENT
CC
.....................................................................................
Fifth
Respondent
GILLIAN VAN BLERK
.................................................................................................
Sixth
Respondent
JUDGEMENT: 18 OCTOBER 2013
BOZALEK, J:
On 18 December 2012 the applicant
obtained a provisional restraint order in terms of s26 of the
Prevention of Organised Crime
Act, No 121 of 1998 (‘POCA’)
against the first and third to ninth defendants and the first to
fifth respondents.
There were various extensions of the provisional
order on return dates until, on 30 July 2013, the applicant sought a
final order
against the first and fifth to ninth defendants and
first and fifth respondents.
The second defendant is no longer a
party to the proceedings whilst the proceedings against the third
and fourth defendants were
postponed to a later date. No order was
sought against the second to fourth respondents because of a failure
to serve the provisional
restraint order and papers upon them.
At the hearing Mr Titus appeared on
behalf of the applicant and Mr Wynne on behalf of all those
defendants and respondents against
whom a final order is now sought,
save for the first defendant. The applicant also sought the joinder
of the ninth defendant’s
wife, to whom he is married in
community of property, as sixth respondent as well as a provisional
restraint order against her
share of the joint estate.
BACKGROUND
The restraint proceedings have their
origin in the activities of the first defendant who was employed as
a financial advisor at
the Claremont branch of First National Bank
between August 2005 and August 2009. During that period, it is
alleged, he defrauded
scores of the bank’s customers of up to
R26mil by persuading them to make bogus or worthless investments.
Instead, the
clients’ funds were channelled into a series of
bank accounts belonging to, controlled by or linked to,
inter
alia,
the first to ninth defendants. More particularly, the
applicant’s case against the eighth defendant is that he
directly
benefitted from the defrauding of the investors in an
amount of R3 174 000 through the receipt of R400 000
from
an FNB client, one Jassiem; R2 330 000 received by the
sixth defendant, a company in which he and his brother, ninth
defendant,
each had a 50% membership; R100 000 from an FNB
customer, Kwezi Kati, through eighth defendant’s membership of
the
fifth defendant, being another company which eighth defendant
controlled and; R344 000 through his control of the fourth
defendant in which, the applicant alleges, he and the ninth
defendant had signing powers. All of these monies are traced back
to
FNB customers who, it is alleged, were initially defrauded of their
funds by the first defendant.
The applicant’s case against
the ninth defendant arises by virtue of his 50% share of the sixth
defendant which received
R2 330 000 of the funds allegedly
defrauded from various FNB clients.
It is also the applicant’s
case that the fraudulent enterprise amounted to a pyramid scheme run
by a syndicate of which
the eighth and ninth defendants were
members.
Complaints from FNB’s
customers began to stream in after the first defendant left its
employment in August 2009. Police
investigations commenced and
eventually led to the first to ninth defendants being charged in the
Specialised Commercial Crime
Court in Bellville with 32 counts of
fraud and 5 counts of contravening the provisions of the
Financial
Advisory and Intermediary Services Act, No 37 of 2002
.
The charges against the defendants
have been temporarily withdrawn pending the outcome of criminal
proceedings against the first
defendant in Johannesburg.
Pursuant to the granting of the
initial restraint order a
curator bonis
was appointed. On 17
January 2013 he reported that he had placed holds on eight FNB and
ABSA bank accounts held in the names
of the eighth defendant
reflecting a total balance of just less than R6mil.
In relation to the ninth defendant
the curator reported that upon investigation he had found that the
defendant had three bank
accounts holding funds of approximately
R2mil, a vehicle, as well as two fixed properties in which he
appeared to have an interest.
Answering affidavits on behalf of
the eighth and ninth defendants and the first respondent, the eighth
defendant’s wife,
were filed in mid-April 2013. The eighth
defendant described himself as an entrepreneur and stated that he
had already made disclosure
under oath of all his assets and
interests. He stated further that he did not oppose the entire
restraint application but limited
his objection to the
proportionality of the order insofar as it related to the alleged
proscribed activities ascribed to himself,
fifth, sixth and ninth
defendants and the first respondent. The eighth defendant denied
that there was any basis upon which he
or any of these parties could
be convicted on any of the preferred charges. He explained that upon
legal advice he would only
canvass his defence fully at the criminal
trial but that in essence all the disputed monies were received in
the ordinary course
of business of the fifth, sixth or ninth
defendants and himself, none of whom were involved in any nefarious
activities.
Insofar as the applicant alleged
that he had received a total of R3.174mil of FNB clients’
monies, the eighth defendant
noted that this sum constituted the
entire benefit attributed to himself and his fellow defendants and
stated that it should
in fact be R2.83mil. Of this latter sum, he
explained, R2.33mil was remitted to him by the first defendant in
respect of a debt
owed (presumably to himself) by one Deon de Klerk,
a brother of the third defendant. He denied the allegation that he
had signing
powers or control over the fourth defendant during the
periods when substantial sums of money, allegedly emanating from
clients
of FNB who were defrauded by the first defendant, were paid
into its bank accounts.
The eighth defendant admitted
receiving R400 000 in his personal capacity from an FNB client,
one Jassiem, as well as R100 000
from another client, Kwezi
Kati, which funds he stated he received in the ordinary course of
business. In relation to the sum
of R344 000, he denied only
receiving it through his involvement with fourth defendant, but not
that he did not receive
it at all.
The eighth defendant furnished
details of the fixed property belonging to him restrained by the
curator as well as his bank accounts
mentioned earlier and
attributed a value of R7.564mil in total to these assets. He
disclosed additional assets, being the value
of his shares in the
fifth and sixth defendants and two other companies. He also
disclosed that the first respondent, his wife,
had assets of
approximately R125 000. Finally, the eighth defendant expressed
the view that the restraint order should be
proportional to the
benefits which he allegedly had received as a result of proscribed
activities as set out by the applicant.
A similar stance was adopted by the
ninth defendant who attributed a total value of R4.539mil to the
three fixed properties, eight
bank accounts and one motor vehicle
belonging to him and now embargoed by the
curator bonis
. He
too disclosed that, in addition to the above assets, he held shares
in the fifth and sixth defendants as well as another
company and
that his wife, whom the applicant now seeks to join as sixth
respondent, had assets of approximately R312 000.
The ninth
defendant admitted the applicant’s allegations that he was a
50% member of the sixth defendant, the other shareholder
being the
eighth defendant, and that the sixth defendant had received
approximately R2.33mil of the monies diverted from FNB
clients/investors. He stated that the funds had been received in the
ordinary course of the sixth defendant’s business
as a
registered credit provider.
During the hearing it emerged that
the sum of R1mil had been released by the curator, no doubt with the
consent of the applicant,
to the eighth and ninth defendants as well
as the motor vehicle belonging to the latter.
THE LAW
Section 25
of POCA provides that a
restraint order may be made:
‘
(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 there are reasonable grounds for
believing that a confiscation order may be made against such
person.’
Section 18
provides that a
confiscation order may be made against a defendant convicted of an
offence/s where that defendant has derived
a benefit from that
offence or from ‘
any criminal activity which the court
finds to be sufficiently related to those offences’.
The
amount of any confiscation order may not, in terms of
s18(2)
,
‘
exceed the value of the defendant’s proceeds of the
offences or related criminal activities, as determined by the
court...
’
Section 19
provides that the value
of a defendant’s proceeds of unlawful activities ‘
shall
be the sum of the values of the property, services, benefits or
rewards received retained or derived by him …. in
connection
with the unlawful activity carried on by him or her or any other
person.’
Finally,
s26
provides that the court
may make a restraint order:
‘
(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 ofthe
restraint order, would be realisable
property.’
THE EXISTING ORDER AND THE ORDER
SOUGHT
The provisional order granted by Van
Staden AJ on 18 December 2012 applied to certain property specified
in a schedule of assets
but also to ‘
all other property
held by the defendants at the time of granting of this order or
subsequently, whether in their respective names
or not, including
all property held for or on behalf of the defendants by any person
or entity and further including the shareholding
of the defendants
in any company’
as well as ‘
all property that
would be realisable property, if transferred to defendants and
respondents or to any third party on behalf of
the defendants, at
any time after the granting of this order;’
.
The order now sought by the
applicant is the making final of the provisional restraint order in
respect of ‘
all realisable property of the first, fifth to
ninth defendants held in their names and the first and fifth
respondents and any
other persons or entities but limited to the
value of R26, 450 438.00 subject to subsequent adjustment in
accordance with
the Consumer Price Index.’
THE ARGUMENTS AND THE ISSUES
On behalf of his clients (whom I
shall refer to collectively as ‘the defendants’) Mr
Wynne argued that the applicant
was entitled to confirmation of the
provisional restraint order only to the extent that it was
proportional to any alleged benefit
which might be ascribed to the
defendants i.e. limited to the amount of R3 174 000.00
being the amount ascribed to
them by the applicant alternatively
R2 830 000.00 being the lesser amount that could be
ascribed to the defendants
on their version.
In response for the applicant, Mr
Titus argued that the case against the defendants was that they
acted as members of a syndicate
with a common purpose and as such
they could be held jointly and severally liable for any confiscation
order which might be granted
flowing from the criminal charges. He
relied in addition on evidence to the effect that, whilst criminal
complaints already reported
to the South African Police by FNB
clients/investors involved R9.914mil, further investigations by the
police revealed other
unreported cases of fraud involving the same
branch of FNB and some of the same defendants involving a further
R16, 540mil. In
these circumstances, Mr Titus submitted, given that
the value of the alleged benefits derived by the syndicate would not
be less
than R26, 450mil, it would be appropriate for the final
restraint order to be capped at this level and for there to be no
proportional
reduction of the restraint order commensurate with the
defendants’ admitted involvement.
The issue in this present case is
therefore whether it is appropriate to limit the impact of the
restraint order on the assets
of the defendants in direct proportion
to their admitted involvement in the subject matter of the existing
criminal charges,
more particularly limited to the amount of money
which certain of them admit to receiving and which emanated from the
clients/investors
who were allegedly defrauded.
In
National Director of Public
Prosecutions v Rautenbach
2005 (1) SACR 530
(SCA) it was
held that when considering an application for a restraint order, it
is required only that it must appear to the
Court on reasonable
grounds that there might be a conviction and a confiscation order.
Whilst the Court must be apprised of at
least the nature and tenor
of the available evidence, and cannot merely rely upon the opinion
of the National Director of Public
Prosecutions, it is nevertheless
not called upon not to decide upon the veracity of the evidence. It
need ask only whether there
is evidence that might reasonably
support a conviction and a consequent confiscation court order (even
if all that evidence has
not been placed before it) and whether that
evidence might reasonably be believed.
The Court held further that a
‘
confiscation order’
is directed at confiscating
the benefit that accrued to the offender whether or not he or she is
still in possession of the particular
proceeds. Once it is shown
that a material benefit accrued, the offender may be ordered to pay
to the state the monetary equivalent
of that benefit even if that
means that it must be paid from assets that were legitimately
acquired. The majority of the Court
held that POCA does not require
as a prerequisite to the making of a restraint order that the amount
in which the anticipated
confiscation order might be made must be
capable of being ascertained, nor does it require that the value of
the property that
is placed under restraint should not exceed that
amount of the anticipated confiscation order. In this regard Nugent
JA stated
as follows at para 56:
‘
Where
the requirements of the Act have been met a Court is called upon to
exercise a discretion as to whether a restraint order
should be
granted, and if so, as to the scope and terms of the order,
and
the proper exercise of that discretion will be dictated by the
circumstances of the particular case. … Where there is
good
reason to believe that the value of the property that is sought to be
placed under restraint materially exceeds the amount
in which an
anticipated confiscation order might be granted, then clearly a Court
properly exercising its discretion will limit
the scope of the
restraint (if it
grants
an order at all), for otherwise the apparent absence of an
appropriate connection between the interference with property
rights
and the purpose that is sought to be achieved - the absence of an
“
appropriate
relationship between means and ends, between the sacrifice the
individual is asked to make and the public purpose that
[it] is
intended to
serve
”
-
will render the interference arbitrary and in conflict with the Bill
of Rights.
’
In the
State v Shaik and
Others
[2008] ZACC 7
;
2008 (2) SACR 165
(CC) the Constitutional Court
considered at length the provisions in POCA relating to confiscation
orders and held that given
the definition of the ‘
proceeds
of unlawful activities’
in the Act, the benefits of crime
that may be confiscated are not limited to the nett proceeds of
crime only but include any
property, advantage or reward derived,
received or retained directly or indirectly in connection with the
result of any unlawful
activity. It held further that the court
determining the amount to be confiscated has a discretion in doing
so which will only
be interfered with on appeal where the court is
satisfied that the lower court acted unjudicially or misdirected
itself or where
the appellate court is of the view that the amount
confiscated is disturbingly inappropriate.
Of some relevance to the present
matter is that the High Court in the
Shaik
matter made joint
and several orders for payment of the value of the three benefits in
respect of which a confiscation order
was made against each of the
appellants, the one paying, the others to be absolved. Although the
Supreme Court of Appeal overturned
the confiscation order in
relation to the third benefit on appeal, the confiscation order
related to the remaining two benefits
and its joint and several
nature was left undisturbed by both the SCA and the Constitutional
Court.
Regarding the
exercise of the discretion by the trial court the Constitutional
Court noted that in most circumstances it would
be entirely
appropriate that all direct profits of crimes of which the defendant
is being convicted be confiscated. However,
a further consideration
relevant in determining what constitutes an
‘
appropriate’
amount,
will be the
nature of the crimes that fall within the express contemplation of
the Act.
‘
The
closer the crimes or criminal activity concerned to the ambit of
organised crime, the more likely it will be that the appropriate
amount will constitute all the proceeds of the unlawful activities
as defined in the Act. The reason for this is that the larger
the
value of the confiscation order, the greater the deterrent effect of
such an order. The Act clearly seeks to impose its greatest
deterrent effect in the area of organised crime; and so where
organised crime is involved, the purpose of general deterrence
will
often be best achieved by a maximum confiscation order, although of
course that will always be subject to a full consideration
of the
relevant circumstances. In asserting this principle, too, it is
important to bear in mind the difficulty of prosecuting
organised
crime successfully as is noted in the preamble to the Act. The
difficulties are many. To name just one crime syndicates
are often
organised in a manner that makes it possible for senior members of
the syndicate to evade prosecution, because many
of the crimes
committed are committed by junior members of the syndicate
.
’
1
ANALYSIS
Applying these principles to the
present matter it is clear, firstly, that the fact that the value of
the property sought to be
restrained may exceed the amount of any
anticipated confiscation order against the defendants is no absolute
bar to a restraint
order in such an amount. Secondly, it is
noteworthy that the main argument advanced on behalf of the eighth
and ninth defendants
appears to presuppose that any confiscation
order made by the trial court against them will not exceed the total
of the monies
which, on the evidence presently available to the
applicant, directly or indirectly reached them from the FNB
clients/investors.
However, the reasoning underlying
this argument is questionable in several respects. Firstly, it
prematurely assumes that no other
evidence will be forthcoming which
links the eighth and ninth defendants to the receipt of further
funds, over and above those
already identified by the applicant. In
this regard it is of some significance that, on the papers, none of
the defendants has
given any detailed account of how the investment
scheme, to use a neutral term, operated, to what extent, if any, the
defendants
worked together in operating the scheme, to whom the
monies flowed and where the vast bulk of that money eventually went.
It
is also relevant that, apart from those of the eighth and ninth
defendants, the
curator bonis
has been unable to find any
significant assets belonging to other defendants.
The second respect in which the
reasoning is questionable is the implicit assumption that no
confiscation order may ultimately
issue against the eighth and ninth
defendants beyond the extent to which they are directly linked to
the receipt of monies from
the clients/investors. This is where the
applicant’s main argument comes in, namely, that a
confiscation order could eventually
be made against the eighth and
ninth defendants hold them jointly and severally liable as members
of a syndicate operating a
pyramid scheme, for monies received by
other members or by the syndicate as a whole.
I have some reservations about this
argument which, unfortunately, was not developed in any detail by
counsel for the applicant.
Firstly, the ‘
syndicate’
is neither a legal entity nor a defendant and no confiscation order
is competent against it. Furthermore, any such co-extensive
liability on the part of the eighth and ninth defendants will, as I
see it, have to satisfy the requirements of s18 read with
s19 of
POCA. Before such an order can be made, presuming it is not founded
on a criminal conviction/s returned against these
defendants, the
trial court will have to be satisfied that the defendants derived a
benefit from criminal activity that it is
sufficiently related to
the offences of which they were convicted. What is more, such
co-extensive liability will be limited
to the value of that
particular defendant’s proceeds, either of the offences or
‘
related criminal activities’.
The provisions in POCA for a
confiscation order are thus not a license to hold a criminal
defendant civilly liable through a confiscation
order for the losses
suffered by a complainant or complainants as a result of related
criminal acts based on that defendant’s
vague association with
such acts and irrespective of whether the defendant derived a
benefit therefrom or not.
The scope of any confiscation order
will ultimately be determined by facts found in the criminal trial.
However, in the event
that the criminal court should find that the
numerous alleged acts of fraud on the FNB customers constituted a
pyramid scheme
and that the eighth and ninth defendants were
integral figures in such a scheme, it is possible that it might make
a confiscation
order against them extending beyond the amounts which
the eighth and ninth defendants thus far admit to receiving. Such a
confiscation
order could be sought against eighth and ninth
defendants in relation to monies received by co-defendants as fellow
members of
a criminal syndicate and may very well be competent given
the broad definition of the ‘
proceeds of unlawful
activities’
read with the provisions of s18 of POCA.
It is material, moreover, at this
stage to note that there are indications that the activities in
which the first defendant was
a lynchpin was in fact a pyramid
scheme. There is evidence that a good number of the investors were
promised substantial returns
and in fact received these for a
limited period of time before they dried up. There is certainly no
evidence that any of the
monies which were stolen or diverted from
the investors found their way into legitimate investments. The
applicant’s papers
contain several allegations that what has
been uncovered is a pyramid scheme or a series of pyramid schemes
run by the first
defendant and the other defendants.
Given that it is common cause that a
substantial amount of the funds allegedly defrauded from the
investors reached the eighth
and ninth defendants, or companies
controlled by them, the applicant’s allegations of them being
parties to a pyramid scheme
is by no means far-fetched. Furthermore,
the eighth and ninth defendants’ failure to explain in any
detail the nature and
the extent of their involvement in these
affairs renders the possibility of them being found by the criminal
court to be integral
parties to such a scheme more likely.
The eighth defendant concedes that
he, or companies in which he had an interest or controlled, received
approximately R3mil in
funds which originated from the defrauded
investors. His explanation for this is scanty in the extreme. Of all
the monies received
by him the only explanation he gives is in
respect of the R2.33mil received through his control of the sixth
defendant. In this
regard he states that these funds were remitted
to him by the first defendant (whom, it is alleged, was the lynchpin
in all the
alleged instances of fraud) in respect of a debt owed by
one De Klerk, the brother of the third defendant. Why the first
defendant
would settle any such debt is left unexplained. Eighth
defendant does not explain his relationship with the fourth
defendant,
another company which received large sums of money from
the defrauded investors. Nor does he explain how it came to be that
he
held funds of approximately R6mil in various bank accounts.
The only further explanation in
respect of the R2.33mil is a letter put before the Court by the
applicant’s investigator
which the eighth defendant, on behalf
of the sixth defendant, wrote to the first defendant in June 2008.
This letter appears
to state that R500 000.00 of the
approximately R2mil which the sixth defendant received from the
first defendant was in
respect of an acknowledgment of debt owing by
the third defendant and his wife. The letter explicitly states that
certain of
these payments were made by ‘
third party
investors’
on behalf of the De Klerks. Even though it
raises many more questions than it furnishes answers, the eighth
defendant gives no
explanation for the letter’s contents nor
any detail as to the circumstances in which he or the sixth
defendant allegedly
came to be owed an amount of at least
R500 000.00 by the De Klerks.
Even less information is forthcoming
from the ninth defendant. He states that the funds which he received
were in the ordinary
course of the sixth defendant’s business
but gives no details either of the business in which it was engaged
or how it
came to receive the monies in question.
Notwithstanding the admitted receipt
by the eighth and ninth defendants, either directly or through
companies in which they had
an interest or some degree of control,
of substantial sums of monies emanating from defrauded investors and
which appears to
have passed through the hands of the first
defendant, they have elected to give no meaningful or detailed
explanation as to the
circumstances in which they received such
funds. Nor have they given any explanation of what their ‘
ordinary
business’
comprises. Instead they have chosen to reserve
their defence or the details thereof for the criminal trial. In
these circumstances,
given the possibility that further evidence may
emerge during the criminal trial of the defendants’ possible
involvement
in what may well have been a pyramid scheme, I consider
that it would be inappropriate and ill-advised to limit the amount
of
the restraint order to only those sums which, on the evidence
presently available, were directly received by the eighth and ninth
defendants or their associated companies. In my view to grant such
an order opens up the real possibility that a confiscation
order
which might later be made by the criminal court against the
defendants might, to a substantial extent, be a
brutum fulmen.
To the extent, however, that the
applicant seeks a restraint order capped slightly in excess of
R26mil, I regard this as wholly
unjustified. That figure represents
an estimate of the total monies allegedly defrauded from the FNB
clients/investors, but the
fraud charges preferred against the
defendants involve no more than R9, 914mil. There is no suggestion
in the papers that additional
fraud charges will be brought and, if
they are, the applicant could in appropriate circumstances seek to
extend the ambit of
any restraint order. I see no justification for
a restraint order of the proportions sought given the present
limited ambit of
the criminal charges, the lack of any indication
that any defendant has assets approaching this level and the
somewhat diffuse
basis for the possible liability of the defendants,
by way of a confiscation order, for sums in excess of those which
they presently
appear to have received. In the circumstances a
capping of the restraint order at the level of R9, 914mil is in my
view, quite
adequate to safeguard the applicant’s interest at
present.
In the result I consider that
provisional order granted on 18 December 2012 should be made final
but subject to the aforementioned
cap.
COSTS
As far as costs are concerned the
defendants have not achieved substantial success in their attempt to
limit the scope of the
restraint order to the level of those funds
which they admit receiving. There is, therefore, no reason why costs
should not follow
the result.
SIXTH RESPONDENT
Ancillary relief sought on an
ex
parte
basis was an order joining the ninth defendant’s
wife, to whom he is married in community of property, as sixth
respondent.
According to the ninth defendant’s answering
affidavit his wife has assets of her own of approximately
R312 000.00
and, by virtue of the marriage, an interest in the
ninth defendant’s assets already under restraint. In the
circumstances
it is appropriate that she be joined as sixth
respondent, that the papers be served on her so that she has an
opportunity of
opposing the granting of a provisional order in
respect of her assets and, if needs be, granting her locus standi to
approach
the Court in terms of s29(6) or (10) with a view to varying
or rescinding the restraint order in respect of the assets already
disclosed by the ninth defendant.
[47] In the result the following
orders are made:
The
provisional restraint order granted on 18 December 2012 in respect
of all realisable property of the first and fifth to ninth
defendants and the first and fifth respondents either held in their
names or those of any other persons or entities, is confirmed;
The
confirmation of the restraint order is subject to the provisions of
paragraph 1.3 of the provisional restraint order granted
on
18 December 2013.
The
restraint order granted against the said defendants and respondents
is limited to the value of R9, 914, 000.00, subject to
subsequent
adjustment in the value thereof in accordance with the consumer
price index (CPI) adjustments.
The
fifth to ninth defendants and the first and fifth respondents are to
pay the costs of opposing the restraint application from
the date of
filing their notices to opposition to the confirmation of the
provisional restraint order.
Mrs
Gillian van Blerk, the wife of the ninth defendant and who is
married to the ninth defendant, is joined as the sixth
respondent in
these restraint proceedings;
The
realisable property held in the name of the sixth respondent is
placed under a provisional restraint order.
The
realisable property concerned is as follows –
7.1.
R150 000 held in the First National Bank money market account
number 62173001117; and
7.2.
A Ford Fiesta motor vehicle with registration number CA 865 414
7.3.
The sixth respondent is authorised to keep the vehicle referred to in
paragraph 7.2 hereof, subject to the following conditions
–
7.3.1.
she keeps the vehicle insured for the duration of this order;
7.3.2.
she may not sell, burden, pledge or otherwise encumber it;
7.3.3.
she maintains and takes the vehicle to be serviced at the requisite
intervals when they fall due; and
7.3.4.
she allows the curator bonis a right of access to inspect the vehicle
when the curator requires to do so.
The
applicant is directed to serve the provisional restraint order and
all the papers filed in support thereof upon the sixth
respondent.
The
provisional restraint order made in paragraph 6 against the sixth
respondent is returnable on
25 November
2013
and
a rule nisi is issued calling upon the sixth respondent to show
cause, if any, on the return date –
9.1.
why the provisional restraint order should not be confirmed pending
the outcome of any confiscation proceedings that may follow
against
the ninth defendant; and
9.2.
should she oppose the confirmation of the order why she should not be
ordered to pay the costs of her opposing this application.
The
applicant is directed to give notice of this order by delivering a
copy by facsimile or registered post or by hand to the
First
National Bank.
Should
the sixth respondent intend to oppose the confirmation of this
provisional order on the return day she must–
11.1.
within 5 (five) days of the service of this order on her, deliver her
notice of intention to oppose; and
11.2.
furnish an address within 8 (eight) kilometers of the office of the
Registrar of this Court to the applicant’s attorneys
of record
at which she shall accept service of all notices, affidavits and
other documents in these proceedings; and deliver her
answering
affidavit, if any within 15 days of notifying the applicant of her
intention to oppose the application.
_________________________
L. J.
BOZALEK
JUDGE OF THE HIGH COURT
1
At
para [71] on page 193