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Last Updated: 8 June 2005
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Reportable
Case no: 043/04
In the matter between:
THE NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS Appellant
and
ANDREW LIONEL PHILLIPS
1st Respondent
LADDIES LARK (PTY) LTD 2nd
Respondent
JANVEST CLOSE CORPORATION 3rd
Respondent
APVEST CLOSE CORPORATION 4th
Respondent
MAYVEST CLOSE CORPORATION 5th Respondent
JUNVEST CLOSE CORPORATION 6th Respondent
AUGVEST CLOSE
CORPORATION 7th Respondent
DECVEST CLOSE CORPORATION
8th Respondent
PORTION 1 OF 247 EDENBURG CC 9th
Respondent
SUSHIMI INV CC 10th
Respondent
SWINGING TRADING TWISTER CC 11th
Respondent
FEBVEST CC 12th Respondent
D MORNINGSIDE
INVESTMENTS
(PTY) LTD 13th Respondent
STEPHEN WERNER
CC 14th Respondent
MOONLITE IMPORT & EXPORT
CC 15th Respondent
DOC PROPERTY INVESTMENTS CC
16th
Respondent
_____________________________________________________
Coram : MPATI AP, SCOTT, NUGENT, FARLAM
JJA et JAFTA AJA
Date of Hearing : 11 NOVEMBER 2004
Date of
delivery : 30 NOVEMBER 2004
Summary: Restraint order in terms of s 26(1)
of Act 121 of 1998 – court granting it has no inherent jurisdiction to
rescind
or vary the order – power to do so limited to the grounds
prescribed in the
Act.
___________________________________________________
JUDGMENT
SCOTT JA:
[1] On 22 December 2000 the appellant, to whom
I shall refer as the NDPP, sought and obtained a provisional restraint order in
the
form of a rule nisi in the Johannesburg High Court against the first to the
15th respondents in terms of s 26 of the Prevention of Organised
Crime Act 121 of 1998 (‘the Act’). The order was made final,
despite
opposition, on 30 July 2001. The judgment of Heher J is reported: National
Director of Public Prosecutions v Phillips and others 2002 (4) SA 60 (W).
Broadly stated, a restraint order serves to prohibit any person from dealing
with the assets of a suspected offender
with the object of ensuring that in the
event of the suspected offender subsequently being convicted those assets will
be available
to satisfy a confiscation order which a court is empowered to make
in terms of s 18 of the Act. An appeal to this court was dismissed
on 4
September 2003. The judgment is reported as Phillips and others v National
Director of Public Prosecutions 2003 (6) SA 447 (SCA). On 19 June 2003, and
prior to the hearing of the appeal, the 15 respondents plus another, the
16th respondent in this appeal, commenced proceedings in the
Johannesburg High Court for the rescission of the restraint order. The NDPP
and
the curator bonis who had been appointed in terms of s 28(1)(a) of the
Act, were cited as the respondents. Only the NDPP opposed. The application was
heard by Louw AJ, who on 12 December 2003 granted an order rescinding the
restraint order. The present appeal against that order
is with the leave of the
court a quo.
[2] In order better to understand the issues and the
context in which they arise it is convenient to set out briefly the events
preceding
the rescission application. As I shall show, these include what may
fairly be described as a spate of applications directed mainly
at the curator
bonis. Some resulted in orders, others were simply left
unresolved.
[3] Until 8 January 2001 the first respondent
(‘Phillips’) owned and openly operated a business known as the
Ranch. It
involved providing a venue and facilities for paying male customers to
have sexual relations with female prostitutes who were not
employees. The
business was conducted on premises at 54 Autumn Street, Rivonia, (‘the
Autumn Street property’) owned
by the 16th respondent. Another
business, known as the Titty Twister, was conducted by the 13th
respondent on the same premises. The business involved the production of strip
tease shows and was said to operate in tandem with
the business of the Ranch.
Phillips is either the sole shareholder or sole member of the second to the
16th respondents.
[4] On 4 February 2000, following a raid two days earlier, the NDPP applied
for and was granted a preservation order in terms of s
38 of the Act prohibiting
any person from dealing with the Autumn Street property. A preservation order is
a prelude to a forfeiture
order. The latter is an order which a High Court is
empowered to make in terms of s 48 of the Act. The forfeiture of property under
these provisions, unlike a confiscation order in terms of s 18, is not dependent
upon a successful prosecution, but ultimately upon
it being established by the
NDPP on a balance of probabilities that the property in question ‘is an
instrumentality of an offence
referred to in Schedule 1’ to the Act or
‘is the proceeds of unlawful activities’. (For an analysis of the
provisions
dealing with preservation and forfeiture orders see NDPP v R O
Cook Properties (Pty) Ltd; NDPP v 37 Gillespie Street Durban (Pty) Ltd
and another and NDPP v Seevnarayan 2004 (2) SACR 208 (SCA).)
Proceedings for a forfeiture order were subsequently commenced but have not been
finalised. Following the granting of the preservation
order on 4 February 2000,
Phillips and the 13th respondent continued to conduct their
respective businesses on the Autumn Street property to the knowledge of the
curator bonis who had been appointed in terms of s 42 of the
Act.
[5] Charges were subsequently laid against Phillips both under the
Sexual Offences Act 23 of 1957 for keeping a brothel and under
the Aliens
Control Act 96 of 1991 for unlawfully employing foreign women. The trial has
commenced but has since been postponed.
[6] The restraint order granted on 22
December 2000 extended not only to the property specified in a schedule of
assets attached to
the order, but, subject to certain exceptions such as
clothing etc, to ‘all other property held by [Phillips], whether in his
name or not’. The first to the 15th respondents were
furthermore directed in terms of s 28(1)(b) to surrender to the curator
bonis any of the property subject to the order which may have been in their
possession or under their control. The curator bonis, in turn, was
authorised and required to take possession or control of the property, to take
care of it and to administer it. Acting
in terms of the order, he took control
inter alia of the businesses which were being conducted on the Autumn
Street property and on 8 January 2001, not unexpectedly, caused them to
cease
operating. The consequence, of course, was that the property ceased to generate
an income.
[7] I mention in passing that the curator bonis previously
appointed in terms of s 42 appears to have played no further role in relation to
the Autumn Street property. The curator bonis appointed in terms of s
28(1) simply took this property into his possession and administered it together
with the other property
to which his appointment related. Nothing turns on this
and further reference in this judgment to the curator bonis is to be
understood as a reference to the curator appointed in terms of s
28(1).
[8] In the absence of available funds, the curator bonis in the
months that followed failed to pay various charges accruing on the immovable
properties owned by the ninth, 13th, 14th and
16th respondents. These included municipal rates as well as other
charges such as those for electricity, water, sewerage removal and the
like. At
the instance of these respondents and Phillips, an order was granted by Grobler
AJ on 23 August 2002 declaring the curator bonis to be responsible for
the payment of all such arrear and future charges. The latter sought to comply
with the order by using the
funds standing to the credit of Phillips and the
second respondent at various banks. Phillips and the second respondent responded
by launching an application for an order directing him to restore the credit
balances in the accounts in question.
[9] In the meantime, the Autumn Street
property, owned by the 16th respondent, and immovable property
situated at 26 Gary Avenue, Morningside, owned by the 13th
respondent, had been damaged by vandals. This prompted two further and separate
applications to compel the curator bonis to restore the properties to the
condition in which they had been on 22 December 2000. An order in these terms
was granted by Masipa
J on 21 November 2002.
[10] In response, no doubt, to
the situation in which he found himself, the curator bonis took steps to
let the immovable properties owned by the respondents in order to generate an
income and so comply with the orders
against him. This resulted in an urgent
application interdicting him from doing so pending yet another application to
have him removed
as curator bonis. The interdict was granted by De Jager
AJ on 6 March 2003 on the ground that the curator was not authorised to let the
properties.
The application to have him removed as curator bonis appears
never to have been finalised.
[11] In the event, the curator bonis
failed to comply with the order granted on 23 August 2002 declaring him to be
responsible for payment of arrear and future charges
on the properties. Contempt
proceedings followed but these were dismissed on 19 March 2003 by De Jager AJ on
the grounds that the
curator bonis had no authority to generate funds and
that he could not be guilty of contempt ‘for not doing what is not
possible to be done’.
Contempt proceedings were also instituted arising
from the curator’s failure to comply with the ‘restoration’
order
granted by Masipa J on 21 November 2002. Answering affidavits were
delivered on 1 April 2003 but the application appears not to have
been pursued,
presumably because of the fate of the earlier contempt proceedings.
[12] The
next step appears to have been the application for the rescission of the
restraint order which, as I have said, was launched
on 19 June 2003. Before
considering the basis on which the respondents (applicants in the court below)
claimed the relief they sought,
it is necessary to refer briefly to a subsequent
event. After the hearing and shortly before judgment was due to be delivered the
NDPP sought and was granted leave to file a supplementary affidavit. Attached to
it was a report by the curator bonis in which he explained that on 17
November 2003 he had succeeded in concluding an agreement with a bank in terms
of which the latter
had made available a credit facility of R10 m to cover the
costs of the former in the performance of his duties as curator bonis. In
an answering affidavit Phillips argued that the amount of R10 m was inadequate
and pointed to various other difficulties which,
he said, would confront the
curator in the event of the latter attempting to rectify what had occurred in
the past. In view of the
conclusion to which I have come it is unnecessary to
consider these issues. It is also unnecessary for the purpose of this judgment
to express a view as to the correctness or otherwise of the various orders
granted against the curator bonis referred to in the preceding paragraphs
and I deliberately refrain from doing so.
[13] The respondents did not seek
to have the restraint order rescinded on one of the grounds provided for in the
Act, but ‘in
the exercise of this court’s inherent jurisdiction to
protect and regulate its own process, and to develop the common law,
taking into
account the interests of justice’. It was contended that in the exercise
of that discretion the rescission order
should be granted because it had become
impossible for the curator bonis to perform his duties under the
restraint order and that the effect of the restraint order was directly contrary
to its clear purpose.
The question that arises and one which became the primary
issue both in this court and the court below, is whether a restraint order
can
be rescinded by the court that granted it in the exercise of its inherent
jurisdiction and on some ground other than one provided
for in the Act. To
resolve the issue it is necessary to refer in some detail not only to the
provisions in the Act relating to the
rescission of a restraint order but also
to those concerning the granting of restraint orders and the appointment of a
curator bonis.
[14] The necessary jurisdictional facts for the
exercise of the discretionary power afforded to a High Court to grant a
restraint
order are set out in s 25(1). The relevant part reads:
‘A
High Court may exercise the powers conferred on it by section 26(1) –
(a) . . .
(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 25(2), which is one of the provisions in the Act dealing with the rescission of a restraint order, provides:
‘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 reasonable.’
Section 26 empowers a High Court to grant a restraint order. Subsection (1) reads –
‘The National Director 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.
Section 26(2), in turn, provides that a restraint order may be made in respect of property of the kind specified therein. Subsections (3) and (7) are not relevant for present purposes. Section 26(8) deals with the execution of a restraint order. It provides –
‘A High Court making a restraint order shall at the same time make an order authorising the seizure of all movable property concerned by a police official, and any other ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order.’
Section 26(9), in turn makes provision for the manner in which seized movable property is to be dealt with. It reads:
‘Property seized under subsection (8) shall be dealt with in accordance with the directions of the High Court which made the relevant restraint order.’
Section 26(10)(a) prescribes the circumstances in which a High Court which made the restraint order may vary or rescind that order. In terms of s 26(10)(b) the court is obliged to rescind the order when the proceedings against the defendant are concluded. Section 26(10) reads:
‘(10) A High Court which made a restraint order –
(a) may on application by a person affected by that order vary or rescind the restraint order or an order authorising the seizure of the property concerned or other ancillary order if it is satisfied –
(i) that the operation of the order concerned will deprive the applicant of
the means to provide for his or her reasonable
living expenses and cause
undue hardship for the applicant; and
(ii) that the
hardship that the applicant will suffer as a result of the order outweighs
the risk that the property
concerned may be destroyed, lost, damaged,
concealed or transferred; and
(b) shall rescind the restraint order when
the proceedings against the defendant concerned are
concluded.’
Finally it is necessary to quote s 28 dealing with the
appointment of a curator bonis, which I do in its
entirety.
‘(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 that 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;
(iii) to administer the said property; and
(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;
(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.
(2) Any person affected by an order contemplated in subsection
(1)(b) may at any time apply –
(a) for the variation or rescission of
the order; or
(b) for the variation of the terms of the appointment of the
curator bonis concerned or for the discharge of that curator
bonis.
(3) The High Court which made an order contemplated in
subsection (1)(b) –
(a) may at any time –
(i) vary or
rescind the order; or
(ii) vary the terms of the appointment of the
curator bonis concerned or discharge that curator bonis;
(b) shall rescind the order and discharge the curator bonis concerned if the relevant restraint order is rescinded;
(c) 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.’
[15] It is appropriate at this
stage to make certain general observations regarding the provisions quoted
above. As far as s 28 is
concerned, it is apparent that once an order is made in
terms of s 28(1)(b) directing property to be surrendered to the curator
bonis, a High Court which made the order may in terms of s 28(3)(a) vary or
rescind that order or it may discharge the curator bonis or vary the
terms of his or her appointment. The circumstances in which the power to vary or
rescind may be exercised are not circumscribed.
Any good or sufficient cause
would suffice and a court would be entitled to have regard to ‘a number of
disparate and incommensurable
features’ when exercising the power so
afforded to it. (Knox D’Arcy Ltd and others v Jamieson and others
1996 (4) SA 348 (A) at 361H-J.) In this respect the provisions of s
28(3)(a) stand in stark contrast to those of s 26(10) dealing with the
court’s power to
vary or rescind a restraint order. On the other hand, in
the absence of an order in terms of s 28(1)(b), the impact of a restraint
order,
certainly in the case of immovable property, would in most cases be minimal.
There would seem to be no reason in such circumstances
why a defendant could not
live on the property, or continue to receive rent from it if let, or run a
business on the property. Such
activities would not involve dealing in the
property within the meaning of s 26(1).
[16] As previously mentioned, the
first to the 15th respondents were in terms of s 28(1)(b) directed to
surrender to the curator bonis any property in their possession or
control which was subject to the restraint order. In the result the High Court
granting the order
was empowered on good or sufficient cause shown to vary or
rescind at any stage the order in terms of s 28(1)(b) or to vary or rescind
any
of the terms of the curator’s appointment. Good or sufficient cause for
varying the terms of the curator’s appointment
would typically include the
need to ameliorate or resolve some administrative difficulty. If the curator
bonis had no authority in terms of his appointment to let any one or more of
the properties, as was held by De Jager AJ to be the case,
the respondents or
the curator bonis would have been free to approach the court for a
variation of the terms of his appointment so as to authorise him to do
so.
[17] The court a quo, in coming to the conclusion it did, found
that on a proper construction of s 26 of the Act it was free in the exercise of
its inherent
jurisdiction to rescind or vary a restraint order on good cause
shown. It reasoned that a restraint order, unlike a confiscation
order in terms
of s 18, was interlocutory, that it was akin to and essentially the same as the
interim interdict at common law sometimes
referred to as an
‘anti-dissipation order’ which it regarded as susceptible to
variation or rescission and that the Act
did not manifest a clear intention to
exclude the common law rule that such an order can be rescinded or varied on
good cause shown.
It concluded that the object of s 26(10)(a) was no more than
to extend the right to apply for such a rescission or variation to any
person
affected by the order in the manner described in the section. In effect,
therefore, so it held, s 26(10) is a ‘locus standi providing
provision’ and not a provision which limits the court’s common law
powers in respect of persons who have locus standi at common law.
[18] The immediate difficulty one has with this conclusion is that it is
inconsistent with the construction placed on s 26 by this
court when dismissing
the appeal against the granting of the restraint order. (The reference is given
in para [1] above.) In that
appeal (‘the restraint appeal’) the
question arose whether a restraint order was appealable. Howie P, who delivered
the
judgment of the court, accepted that a restraint order was only of interim
operation ‘and that, like interim interdicts and
attachment orders pending
trial, it has no definitive or dispositive effect as envisaged in [Zweni v
Minister of Law and Order 1993 (1) SA 523 (A)]’ (para 20). Recognising
that interlocutory orders which are said to be ‘purely
interlocutory’
(see eg Bell v Bell 1908 TS 887 at 891), may be
varied or rescinded by the court that granted them and are therefore
unappealable, the learned president
identified the ‘crucial
question’ to be ‘whether a restraint order has final effect because
it is unalterable by
the court that grants it’ (para 20). In answering the
question so posed, the president contrasted a restraint order with an
order made
in terms of s 28(1) of the Act. At para 21 he said:
‘[21] Orders
respectively appointing curators, requiring surrender of property and
burdening title deeds are all rescindable at any time. Presumably the unstated
requirement is
that sufficient cause must be shown but otherwise, unlike the
case of s 26(10)(a), no limits are placed on their susceptibility to
rescission.
And in the case of a common-law interim interdict or attachment pendente
lite there is no reason why, for sufficient cause, they would not,
generally, be open to variation, if not rescission.’
Thereafter, and
having previously referred to the limited circumstances in which a restraint
order may be rescinded or varied as prescribed
by s 26(10)(a), the learned
president concluded: (para 22)
‘Absent the requirements for variation
or rescission laid down in s 26(10)(a) (and leaving aside the presently
irrelevant case
of an order obtained by fraud or in error) a restraint order is
not capable of being changed.’
He accordingly held that the order was
final in the sense required for appealability and that for this and other
reasons which need
not be considered the restraint order was
appealable.
[19] In his judgment, Louw AJ makes no more than a passing
reference to the judgment of this court in the restraint appeal and appears
not
to have appreciated that the finding of the court that a restraint order was
unalterable, save as provided for in the Act, was
part of the ratio
decidendi and therefore binding upon him. Nonetheless, I consider it
desirable to comment on the construction placed on s 26(10)(a) by the
court a
quo (which was not advanced in the restraint appeal); namely that the
section is no more than ‘a locus standi providing provision’.
As I understand the learned judge’s reasoning, it is this: A defendant, ie
a person charged or
to be charged, who wishes to have a restraint order varied
or rescinded need establish no more than the existence of good or sufficient
cause, as the expression is understood at common law, but anyone other than the
defendant would be confined to the grounds set forth
in s 26(10)(a). I must
immediately confess to finding this construction contrived, to say the least.
However, its fallacy lies in
the fact that it is premised on the assumption that
a court granting a restraint order has inherent jurisdiction at common law to
vary or rescind the order until deprived of that jurisdiction, whether expressly
or by necessary implication. A restraint order as
contemplated in s 26 is not
one that may be granted at common law. A High Court is empowered by the Act to
grant the order just as
it is empowered by the Act to vary or rescind it. If no
provision was made in the Act for the order to be varied or rescinded at
the
instance of a defendant, as is apparently suggested, the order would stand until
set aside in terms of s 25(2) or s 26(10)(b).
In my judgment, s 26(10)(a) is not
capable of the construction the court a quo would place upon it; the
section prescribes the circumstances in which a High Court may vary or rescind a
restraint order, whether
at the instance of the defendant or any other
‘person affected’ by it.
[20] In this court counsel for the
respondents submitted that even if in terms of the Act the circumstances in
which a court may rescind
a restraint order were limited to those prescribed in
s 26(10)(a), a court, nonetheless, ought to be able to rescind the order in
the
circumstances which prevailed in the present case. He argued that just as a
court could always set aside an order on the grounds
of fraud or error as
observed by Howie P in a passage quoted in para [18] above, so would a court be
able to set aside a restraint
order where its implementation had become
impossible.
[21] It is a well-established principle that a court may always
set aside its own final judgment in certain limited circumstances.
These include
situations where the judgment is founded upon fraud, common mistake and the
doctrine of instrumentum noviter repertum (the coming to light of as yet
unknown documents). See generally Herbstein & Van Winsen The Civil
Practice of The Supreme Court of SA 4ed by Van Winsen, Cilliers & Loots,
edited by Dendy, at 690-698. The principle, however, has no application to the
circumstances
relied upon by counsel. As observed by Trengove AJA in Swadif
(Pty) Ltd v Dyke NO 1978 (1) SA 928 (A) at 939D-F:
‘. . . I do
not consider it necessary to enter upon a discussion of the grounds upon which
the rescission of a judgment may
be sought at common law because, whatever the
grounds may be, it is abundantly clear that at common law any cause of action,
which
is relied on as a ground for setting aside a final judgment, must have
existed at the date of the final judgment.’
[22] The contention that
the restraint order has become impossible to implement is in any event based on
a misconception. As indicated
above, there is a clear distinction between the
restraint order made in terms of s 26(1), on the one hand, and an order in terms
of s 28(1) on the other. The former has the effect of prohibiting any person,
subject to certain conditions and exceptions, from
dealing in any manner with
property made subject to the order. Such a prohibition may, no doubt, in
particular circumstances result
in undue hardship. Indeed, the provisions of
s 26(10)(a) are aimed at such a situation. But it is difficult to conceive a
situation in which a prohibition is impossible to implement.
Section 28(1), on
the other hand makes provision for an order appointing a curator bonis,
directing the surrender of the property in question to him or her and
determining the latter’s powers in relation to that
property. As
previously observed, once an order is made in terms of s 28(1)(b) any order in
terms of s 28(1) may be varied or rescinded
on good or sufficient cause
shown.
[23] The facts of the present case reveal a woeful lack of
co-operation between the respondents and the curator bonis. The root of
all the problems highlighted by the respondents and giving rise to the flood of
court applications lay in the absence
of funds available to the curator
bonis to care for and pay the imposts in respect of the immovable properties
in question. But these difficulties arose, not from the restraint
order, but
from the absence of a power afforded to the curator bonis in terms of the
order made under s 28(1)(a) to generate the necessary funds from the use of the
properties, or possibly the latter’s
failure properly to exercise the
powers already granted. As I have said, the obvious solution appears to have
been to grant the curator bonis the power to let one or more of the
properties.
[24] It is true, of course, that in the absence of a restraint
order there could be no order in terms of s 28(1)(b). But it does not
follow
that the implementation of the restraint order has been rendered impossible by
reason of the failure of the curator bonis to exercise powers which he or
she has, or the failure of the curator bonis to be afforded powers
necessary properly to administer the property.
[25] To sum up, a High Court
which grants a restraint order in terms of s 26(1) of the Act has no inherent
jurisdiction to rescind
the order. Subject to one exception its power to do so
is circumscribed by the Act and is limited to the grounds set forth in s 25(2)
and s 26(10). The exception is the existence of one or other of the recognised
common law grounds for rescission which must have
existed when the restraint
order was granted.
[26] The respondents’ application for rescission of
the restraint order was founded on none of these grounds and the appeal
must
accordingly succeed.
[27] The following order is made:
(a) The appeal is upheld with costs, including the costs of two counsel.
(b) The order of the court a quo is set aside and the following is substituted:
‘The application is dismissed with costs, including the costs of two counsel’.
__________________
D G
SCOTT
JUDGE OF APPEAL
CONCUR:
Mpati
AP
Nugent JA
Farlam JA
Jafta AJA
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