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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no : 135

PARTIES:

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS                                                   APPLICANT/APPELLANT

and

CORNELIUS PETRUS SCHMITT                                     FIRST DEFENDANT

JOHANNES FREDERICK SCHMITT                         SECOND DEFENDANT

JACOBA ALIDA SCHMITT                                           FIRST RESPONDENT

ODEEN GERBER                                                     SECOND RESPONDENT

JOHANNES FREDERICK SCHMITT, NO                     THIRD RESPONDENT

CORNELIUS PETRUS SCHMITT, NO                      FOURTH RESPONDENT

ERNA SCHMITT                                                             FIFTH RESPONDENT

SMART PAYMENTS SERVICES (PTY) LTD               SIXTH RESPONDENT

WERNER GERBER                                                 SEVENTH RESPONDENT

REFERENCE NUMBERS -

• Registrar:  257/03

• Magistrate:

• High Court: South Eastern Cape Local Division

HEARD: 2 June 2006                          

DATE DELIVERED: 8 June 2006

JUDGE(S): Dambuza J

LEGAL REPRESENTATIVES -

Appearances

• for the State/Applicant(s)/Appellant(s): Adv Kingsley

• for the accused/respondent(s): Adv Hattingh

Instructing attorneys:

• Applicant(s)/Appellant(s): State Attorney

• Respondent(s): Roelofse Meyer Inc

CASE INFORMATION -

• Nature of proceedings : Leave to appeal

• Topic:

• Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

                   CASE NO: 257/03

                                   

In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS                                                   APPLICANT/APPELLANT

and

CORNELIUS PETRUS SCHMITT                                    FIRST DEFENDANT

JOHANNES FREDERICK SCHMITT                          SECOND DEFENDANT

JACOBA ALIDA SCHMITT                                          FIRST RESPONDENT

ODEEN GERBER                                                     SECOND RESPONDENT

JOHANNES FREDERICK SCHMITT, NO                     THIRD RESPONDENT

CORNELIUS PETRUS SCHMITT, NO                      FOURTH RESPONDENT

ERNA SCHMITT                                                            FIFTH RESPONDENT

SMART PAYMENTS SERVICES (PTY) LTD                SIXTH RESPONDENT

WERNER GERBER                                                 SEVENTH RESPONDENT

______________________________________________________________

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

______________________________________________________________

DAMBUZA J:

1.         The application for leave to appeal is based on eight grounds.  Some of them do not, in my view, correctly reflect the findings I made in the main judgment.  I will therefore consider those that are founded on a correct reading of the judgment.

2.         It is submitted on applicant’s behalf that another Court might find that defendants’ loss of benefit derived from their unlawful acts should not inure to their benefit in an application for a Confiscation Order.  In this regard Mr Kingsley who appeared on applicant’s behalf argued that not much reliance if any, should be placed on the cases of National Director of Public Prosecutions v Kyriacoin 2004 (1) SA 379 and National Director of Public Prosecutions v Profit 2003 (8) BCLR 96 as in these cases the application before court was for a Preservation Order (under Chapter 6 of the Prevention of Organised Crime Act, Act 121 of 1988 (POCA)).  Although I am not persuaded that reliance on these cases is misplaced, it does seem to me that another court might find the fact that applicants (and the respondents in the main application) remain owners of assets of substantial value to be material in the assessment of the application for a confiscation order. 

3.         Further, I am in agreement with the submission that another court might find the mitigating factors set out by the Appeal Court in the Criminal Case (these being the fact that applicants were encouraged by the officials of the Bank which they defrauded, to engage in the fraudulent acts of which they were convicted and the fact that the Bank subsequently established the type of loan, the absence of which had led  applicants to engage in fraudulent acts,) to be of minimal relevance in the application for a confiscation order.

In the result, the following order will issue:

(a)       Leave is granted to the applicants to appeal to the full bench of this division;

 (b)      Costs shall be costs on appeal.

                                   

           

_________________________

N DAMBUZA

JUDGE OF THE HIGH COURT                                                    6 June 2006

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