IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Case number: 2023-028928 
(1)	REPORTABLE: NO
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED: YES
DATE:12 June 2024
SIGNATURE

In the matter between:
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS		Applicant

And

LORETTE JOUBERT							1st Defendant

KISHENE CHETTY								2nd Defendant

KRISHNA CHETTY								3rd Defendant

MARICHA JOUBERT							4th Defendant

KUMARASEN PRITHIVIRAJ						5th Defendant

VOLAN PRITHIVIRAJ							6th Defendant

RAMAHLAPI JOHANNES MOKWENA					7th Defendant

JAMES RAMANJALUM							8th Defendant

JABEZ NAIDOO								9th Defendant

LESETJA DAVID MOGOTLANE						10th Defendant

THOMAS DUMASI MARIMA						11th Defendant

VEERAN NAIPAL								12th Defendant

ALPHEUS NKOSIBAKHE MAKHETHA 				13th Defendant

MARCEL DUAN PATRICK MARNEY					14th Defendant

JACOBA MAGDELENA HAVENGA					15th Defendant

KYSAMULA MORRIS MABASA 						16th Defendant

WILLEM JOHANNES JANSEN						17th Defendant

HARRY MKHULU MILANZI						18th Defendant

RUDOLPH JOHANNES JACOBUS SMIT				19th Defendant

MARNA LEANA BORNMAN						20th Defendant

MODIKWA BRENDA TSEBENHLANE					21st Defendant

PRINESH NAIDOO								22nd Defendant

ANDRÉ SIMPSON								23rd Defendant

ZUZETTE MAGRIETA SPANG						24th Defendant

MALUMISIS ABEL MAFHOHO						25th Defendant

RUMILA VADIVALOO NAIDOO (PILLAY)				26th Defendant

ROSINA MILANZI								27th Defendant

ABIGAYLE ABNER ESAU						28th Defendant

SALAMINA KHOZA							29th Defendant

LETHABO MABORE MAMABOLO					30th Defendant

SCHALK WILLEM COETZEE						31st Defendant

LINDA LUBANYANA							32nd Defendant

ZELDA FUHRI BOTHA							33rd Defendant

PIETER JOHANNES JACOBS						34th Defendant 

MAMOHUBA HELEN MODIBA						35th Defendant

TSHEPO EDWIN MODIKWE						36th Defendant

FAMANDA SAMSON MASHELE						37th Defendant

JOSEPH MONYOKO							38th Defendant

LAWRENCE PHEELO THAHANE					39th Defendant

ANNA CATHARINA ELIZABETH DU PREEZ				40th Defendant

PRAGALATHAN GOUNDEN						41st Defendant

TSHEPHO ANDREW MASHEGO					42nd Defendant

RAVIN RAMLALL								43rd Defendant

HANISHA CHETTY								44th Defendant

JANE MTHEMBU								45th Defendant

SERANG TRADING (PTY) LTD (2016/504428/07) 
(AS REPRESENTED BY THE 2ND DEFENDANT)			46th Defendant

ARGAN AUTOMOTIVE MECHANICAL INNOVATION AND
 TOWING SOLUTIONS (PTY) LTD (2016/504428/07) 
(AS REPRESENTED BY THE 6TH DEFENDANT)			47th Defendant

BLUE VOICE CONSULTING AND PROJECTS CC 
(2011/018413/23) 
(AS REPRESENTED BY THE 27TH DEFENDANT) 			48th Defendant

BAMBANANI MARKETING AND PROJECTS 
(2009/206512/23) 
(AS REPRESENTED BY THE 2ND DEFENDANT) 			49th Defendant

BAROMA CONSTRUCTION AND OFFICE 				50th Defendant
CONSUMABLES (PTY) LTD (2012/059965/07)
(AS REPRESENTED BY THE 18TH DEFENDANT)

BAJATWALA DISTRIBUTORS (PTY) LTD (2017/359724/07)
(AS REPRESENTED BY THE 43RD DEFENDANT)			51st Defendant

CICADA AUTO ENGINEERING AND MECHANICAL
SOLUTIONS (PTY) LTD (2016/504477/07)
(AS REPRESENTED BY THE 32ND DEFENDANT)			52nd Defendant

COUNTERPOINT TRADING CC (2002/049187/23) 
(AS REPRESENTED BY THE 3RD DEFENDANT)			53rd Defendant

DITORO TRADING CC (2004/033581/23) 
(AS REPRESENTED BY THE 22ND DEFENDANT)			54th Defendant

EMETHONJENI FURNITURE AND PROJECTS (PTY) 
LTD (2012/059956/07) 
(AS REPRESENTED BY THE 18TH DEFENDANT)			55th Defendant

GAUTOOLS (PTY) LTD (2012/177517/07)
(AS REPRESENTED BY THE 1ST DEFENDANT)			56th Defendant

IMPOKANE GENERAL TRADE AND DISTRIBUTION
(PTY) LTD (2017/249446/07) 
(AS REPRESENTED BY THE 1ST DEFENDANT)			57th Defendant

IMBOBEZI ENTERPRISES (PTY) LTD (2017/356800/07)
(AS REPRESENTED BY THE 22ND DEFENDANT)			58th Defendant

ISASALETHU CONSTRUCTION AND OFFICE 
CONSUMABLES (PTY) LTD (2012/060132/07) 
(AS REPRESENTED BY THE 29TH DEFENDANT)			59th Defendant

ISIMBALI TRADING AND PROJECTS (PTY) LTD 
(2012/061888/07) 
(AS REPRESENTED BY THE 18TH DEFENDANT)			60th Defendant

KLIPFONTEIN LEDWABAS GENERAL DEALERS CC 
(2003/013811/23) 
(AS REPRESENTED BY THE 26TH DEFENDANT)			61st Defendant

KGOTHO TRADING ENTERPRISE (PTY) LTD 
(2011/004261/07) 
(AS REPRESENTED BY THE 5TH DEFENDANT)			62nd Defendant

MAFUTA MARKETING SOLUTIONS CC
(2005/0550065/23) 
(AS REPRESENTED BY THE 44TH DEFENDANT)			63rd Defendant

MPAPADI TRADING CC (2006/073470/23) 
(AS REPRESENTED BY THE 3RD DEFENDANT)			64th Defendant

SEMI BUILD 303 CC (2002/068769/23) 
(AS REPRESENTED BY THE 2ND DEFENDANT)			65th Defendant

SIFIKILE FURNITURE AND PROJECTS (PTY) LTD 
(2012/059968/07) 
(AS REPRESENTED BY THE 29TH DEFENDANT)			66th Defendant

SIYANGOBA TRADING AND PROJECTS (PTY) LTD 
(2012/061892/07) 
(AS REPRESENTED BY THE 3RD DEFENDANT)			67th Defendant

SUPER STATIONERY DISTRIBUTORS CC 
(2005/014625/23) 
(AS REPRESENTED BY THE 5TH DEFENDANT)			68th Defendant

THANDEKA RMT MARKETING SOLUTIONS CC 
(2007/221864/23) 
(AS REPRESENTED BY THE 27TH DEFENDANT)			69th Defendant

UMBANATIE TRADING AND PROJECTS (PTY) LTD 
(2009/153030/07)
(AS REPRESENTED BY THE 5TH DEFENDANT)			70th Defendant

VATIKA TRADING AND PROJECTS (PTY) LTD 
(2014/052777/07)
(AS REPRESENTED BY THE 1ST DEFENDANT)            		71st Defendant

KISHENE CHETY N.O. (IN HIS CAPACITY AS JOINT 
TRUSTEE OF THE CHETTY FAMILYTRUST)
 IT 000066/2016(G)								1st Respondent

HANISHA CHETTY N.O. (IN HER CAPACITY AS 
JOINT TRUSTEE OF THE CHETTY FAMILYTRUST) 
IT 000066/2016(G)								2nd Respondent

LAHITA CHETTY								3rd Respondent

VASANTHI PRITHVIRAJ							4th Respondent

SIBONGILE NOSIPHO MOGOTLANE					5th Respondent

SUSARA NAIPAL								6th Respondent

MARGARET FULUFHELO MAFHOHO					7th Respondent

THABISO SETSEAKOBO WALTER MPHAHLELE			8th Respondent

RIAAN BOTHA								9th Respondent

ALETTA ELIZABETH JACOBS					         10th Respondent

SEJABATI CYNTHIA MODIKWE					         11th Respondent

O’ NIEL PERUMAL							         12th Respondent

REASONS FOR JUDGMENT

LESO, AJ:

[1]	This matter was heard in the urgent court wherein the 3rd, 53rd and 64th Defendants filed an urgent anticipatory application to anticipate the return date for the purpose of discharging or varying the provisional order granted in favour of the NDPP on 28 May 2023.

[2]	The respondents brought an urgent application after the NDPP obtained an order in an ex parte application for a provisional restraint against dealing with the assets of the defendants and the respondents and the order to disclose and surrender such property pending further order of this court and in terms of section 26 of the Prevention of Organised Crime Act 121 of 1998 as amended.

[3]	In the circumstances the court made the following order: 

1.	That the rule nisi with return date 11 July 2023 be anticipated on 19 June 2023.

2.	That the provisional order granted by this Honourable Court on 28 April 2023 made against the Third, Fifty Third and Sixty Fourth Defendants be discharged and set aside.

3.	That the applicant be ordered to pay the costs of this application on a scale as between attorney and client.

Order on urgency

[4]	The provisional court order in terms of POCA was granted on 28 April 2023 with the return date of 11 July 2023. The defendant and the respondents were allowed to oppose the confirmation of the provisional order on the return date. The defendants were allowed to make an application to anticipate the return date for the purpose of discharging or varying the provisional order on less than 24 hours' notice of such application to the applicant.

[5]	The applicant opposes the anticipation of the return date on the basis that no urgency has been shown to exist and has filed and served a Replying Affidavit/Answering Affidavit for the matter to be struck off the roll and be dealt with on 11 July 2023. The NDPP conceded to having become aware of the defendant's intention to file an application to anticipate the return date on 1 June 2023. The main opposition on urgency lies in the NDPP’s complaint relating to the fact that the defendants failed to file their opposition on 19 May 2023 and the prejudice it suffered by not being able to prepare the replying affidavit.

[6]	I was persuaded by the applicant's submission that the applicant cannot be afforded substantial redress at a hearing in due course because they are not parties to the proceedings on 11 July 2023 which the NDPP did not dispute. Having considered the reasons for non-compliance given by the defendants, the grounds for opposition by the NDPP and the nature of the application, the court was inclined to hear the application.  

Merits

[7]	The court exercised its discretion and permitted the filing of the answering affidavit by the NDPP which was filed in the course of the hearing of the application.  The merit of this matter was mainly based on the provisions of Rule 6(8) of the Uniform Rules of the High Court and the non-disclosure or failure to put all facts before the court in the ex parte application for POCA which I will deal with later. Rule 6 of the Uniform Rules provides as follows:

Rule 6

“(8) Any person against whom an order is granted ex parte may anticipate the return day upon delivery of not less than twenty-four hours’ notice.”
 
[8]	The submission made by Counsel for the defendants after the NDPP filed the answering affidavit changed the complexion of the defendants’ case. The non-disclosure or failure to put all facts before the court in the ex parte application in the POCA application was the highlight of the case. The NDPP’s response was that the ex parte provisions were carefully invoked because adequate good cause or reason has been shown for such an adopted procedure. I considered all the affidavits filed by the NDPP and the oral submissions by the counsel representing the NDPP that the restrained papers constitute the evidence in the applicant's case in which it is expected to make out a proper case that there are reasonable grounds to believe that the defendants face prosecution, may be convicted and a confiscation order may be granted. That applicant is not expected to prove the actual guilt of the 3rd, 53rd and 64th defendants beyond reasonable doubt. Most of the NDPP’s argument was centered around the allegations of unlawful activities and the pending criminal cases(s) faced by the 3rd, 53rd, and 64th defendants. There was no explanation tendered as to why certain information or facts were not disclosed in the ex parte application.

[9]	The proposition by the NDPP that the history of the arrest and the striking off of the criminal case from the roll did not entitle the applicant to issue a Provisional Restraint Order because such history is irrelevant and misplaced. It is not for the NDPP to decide which information is good for the ears of the court if the information is readily available at the time of the ex parte application.  The nature of the proceeding compels the applicants to disclose fully and honestly to the court, particularly because the order was granted in the absence of the other parties and considering the principle of the audi alteram partem rule which is embedded in our legal system. The principle on ex parte applications was set out in Pretoria Portland Cement Co Ltd v Competition Commission, where the court held that  “an ex parte application by its very nature places only one side of a case before the court and requires the utmost good faith on the part of the applicant”.

[10]	The legal principle in ex parte applications is that applicants in ex parte applications have a duty to be completely transparent and honest with the court. Any breach of this duty could lead to the dismissal of the application or adverse cost orders, emphasising the importance of maintaining utmost good faith throughout the process. Similarly in Estate Logie v Priest, the court held that “failure to make full disclosure of all known material facts (that is, facts that might reasonably influence a court to come to a decision) may lead the court to refuse the application or to set aside the ruling easily on that ground alone, quite apart from considerations of wilfulness or mala fides”. 

[11]	I found that the non-disclosure of the outcome of the criminal proceedings against the defendant is material facts that should have been placed before the court so that the court can be able exercise discretion on whether or not to grant the restrained order. There is no good reason why the NDPP failed to disclose such information.

[12]	The Order discharging the Provisional Restrained Order granted by this Court on 28 April 2023 made against the 3rd, 53rd and 64th defendants was granted based on the NDPP’s failure to disclose other facts during ex parte application.

[13]	The Order for extension of rule nisi was granted on the basis that there was an agreement on the extension of the return date by the parties during the urgent application. 

Cost Order

[14]	The court awarded a costs order having exercised its discretion and the general rule that the successful party is entitled to costs of costs follows suit.   

JT LESO
ACTING JUDGE OF THE HIGH COURT

Delivered: the reasons for the judgment were prepared and authored by the judge whose name is reflected herein and is handed down electronically and by circulation to the parties/their legal representatives, by email and by uploading it to the electronic file of this matter on Caselines. 

DATE OF HEARING:	19 June 2023

DATE OF JUDGMENT:	19 June 2023

APPEARANCES
Counsel for the Applicant:		Adv J Wilson
Instructing Attorney:			Mr Kgaphola, State Attorney Pretoria
 316 Thabo Sehume Street
 PRETORIA
 Tel: (012) 309 1677
 Email: Kkgaphola@justice.gov.za
 or CISibiya@npa.gov.za
 Ref Mr Kgaphola/2023/AFU/PTA

Counsel for the 3rd, 53rd
And 64th defendants:		Adv NGD Maritz SC and Adv WJ Botha
Instructing Attorneys:		Heckroodt and Associates Attorneys
					369 Polaris Avenue
					Waterkloof
					PRETORIA
					Tel: (012) 940 3555
					Email: hannah@heckroodtlegal.com
					Ref: P HECKROODT/CHETTY003

Counsel for the Curator:		Adv D Marais
Instructing Attorneys:		Kern & Partners
					Tel: (011) 643 4020
					Email: clive@kernlaw.co.za
					Ref: Mr C Kern