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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO:14201/05

DATE:2006-01-27

In the matter between

T W VAN DEN HEEEVER N.O..................................................................................... Applicant

and

N Z MNGOMEZULU AND OTHERS....................................................................... ….Respondent

JUDGMENT

WILLIS. J: On 14 September 2004 I granted an order in favour of the National Director of Public Prosecution in terms of section 26 of ; the Prevention of Organised Crime Act No. 121 of 1998 ("the Act") placing certain assets of the first respondent in the main application under restraint. This order is both generally and in these particular proceedings known as a restraint order.

In terms of clause 1.4 of that restraint order, the applicant in ; the main application, was appointed as the curator bonis in terms of section 28(1 )(a) of the Act and subject to the applicable provisions of the Administration of Estates Act No. 66 of 1965 as well as the supervision of the Master of the High Court.

The return day of that restraint order which was provisional in nature, was anticipated by the first respondent in the main application and this provisional order was confirmed by Ismail AJ. Ismail AJ granted leave to appeal against the order which he had confirmed. By necessary implication he granted leave to appeal against the order that I too had made earlier on 17 September 2004. The appeal was directed to the Supreme Court of Appeal and that appeal is still pending.

The applicant in the main application who, as I have already indicated, was appointed curator bonis of assets, which extend to a considerable estate of the first respondent in the main application, has sought leave to sell the property which was subject to the restraint order and to use the proceeds thereof for the purposes of administering the assets and further ancillary relief.

The curator has made a case that he does not have liquid assets, that is money available to pay the expenses relating to the administration of the restrained assets. It would appear that he has attempted to liaise through the attorney of record with the first respondent to reach some arrangement to sell certain of the immovable property in order to meet these expenses. In particular, the property known as Erf 1 07 Zimbali Estate is one which the curator is particularly anxious to sell and utilise for the purpose of meeting the relevant expenses. It is this property which the first respondent is most anxious should not in fact be sold in order to defray certain expenses. Be that as it may, the first respondent has taken the view that the applicant in the main application (re. the curator) should not be authorised to sell any of the assets.

The first respondent in the main application has now made an application for a postponement of that main application pending the outcome of the appeal. This application has been opposed by the curator. The appeal has been directed, I have been given to understand, against all issues which were raised by the first respondent in the main application. Among those, are the correctness and indeed the constitutionality of an order in paragraph 1.7 which I granted on 17 September 2004. Obviously, I have no idea how the Supreme Court of Appeal will decide the appeal and it would be quite wrong for me to speculate on the outcome thereof. It is sufficient for me to note that quite obviously the first respondent in the main application could well be successful in varying degrees when the appeal is argued. It may even be that the first respondent is entirely successful.

The relevant principles relating to a postponement are set out in the well-known case of Myburgh Transport v Botha t/a S A Truck Bodies 1991 (3} SA 310 (Nm SC). The judgment was that of Mahomed AJA (as he then was).

Counsel for both sides in this matter agreed that the crucially relevant issue in determining the application for a postponement, was the question of the respective prejudice to the parties. It is quite obvious that if indeed assets are sold, there would be irreparable harm to the first respondent in the main application. That, of course, is a highly relevant consideration. The risk of harm to a person in the position of the first respondent was a matter to which Grobler AJ referred in the as yet unreported case of Andrew Lionel Phillips and Others v T W van den Heever N.O. (who is the same curator in this particular matter) (Case No. 2002/11 099) and also in the matter of Andrew Lionel Phillips and Laddys Locks (Pty) Ltd v Theodore Wiliem van den Heever in Case No. 12515/03. This was the judgment of my sister Khampepe J. The potential prejudice of a person in the position of the first respondent in the main application, is also reflected in the judgment of Andrew Lionel Phillips v The National Director of Public Prosecutions in the as yet unreported case CCT55/04.

One now has to balance this against the prejudice, potential or real, to the applicant. Mr Joseph correctly submitted that the applicant as curator acts in the interests of the persons whose assets are subject to the order. The curator is not the agent of the National Director of Public Prosecutions but has a duty to preserve and protect the assets in the interests of the person to whom they belong. If that person, as in this particular case, expressly disavows his wish to be assisted by the curator in the manner in which the curator wishes to assist him, then I believe that the respondent would have only himself to blame if there is prejudice which arises by reason of his having "blocked" the transaction which the curator wishes to perform. Mr Joseph submitted that the expenses which the curator wishes to defray are rates and taxes, bond repayments, insurance, the payment of security guards at the premises and various ancillary matters such as the payment of water and electricity accounts. Obviously if these are unpaid there could be prejudice of quite a serious nature to the first respondent. But, as I have said, if the first respondent does not wish the curator to assist him in this regard, the first respondent has only himself to blame. The curator himself would not be prejudiced by his inability to act as he proposes.

Mention has been made in the judgment of Grobler AJ, to which I referred earlier, as to the possibility of the curator obtaining a loan from the National Director of Public Prosecutions to defray these expenses. This, it seems to me, is indeed a possibility but the National Director of Public Prosecutions is not a party to these proceedings. It is perhaps sufficient for me to note that the National Director of Public Prosecutions must sit upon quite a sizeable kitty given the number of forfeiture orders which are made in this court. There would, it seems to be, ample resources which could be drawn upon temporarily should the National Director of Public Prosecutions be keen that certain expenses be defrayed in order to protect whatever interest he or she may have in the ultimate outcome.

Mr Redman raised the question of the curator's fees. Mr Joseph expressly disavowed that his client wished at this stage to be placed in funds for fees arising from the sale of assets. Indeed, it would seem from the order which was made in this matter, as well as the provisions of section 28(3)(c) that the fees for the curator bonis may be recovered ultimately from the confiscated proceeds if a confiscation order is made and from the State if no confiscation order is made. After all, if the curator bonis is unhappy with these terms, he can resign from his appointment. Certainly, that prejudice is utterly minimal when balanced against the prejudice which the first respondent in the main application could suffer.

Reference was made by Mr Redman to the fact that ordinarily when an appeal is pending, execution is stayed precisely in order to prevent harm in the event that the decision of the High Court is reversed. It was a moot point as to whether or not section 24A of the Act applied in this particular situation. Section 24A provides that:-

"A restraint order.... shall remain in force pending the outcome of any appeal against the decision concerned." Mr Joseph submitted that this section did not apply the situation with which we are dealing at present.

Be that as it may, I do not think I need dwell very much upon that issue. When balancing the respective prejudice to the parties, it seems to me quite clear that it is the first respondent who would suffer most acutely in the event if I was to refuse the postponement. Accordingly, in my view, the application for a postponement must succeed.

The 17th respondent has been present in court during the hearing of this matter. The 17th respondent has a bond registered in its favour over certain property which is the subject matter of the restraint order and clearly had a legitimate interest in being in court for the hearing of this matter.

Counsel for all parties agreed that the appropriate order that I should make relating to costs is that the costs in this postponement application should be reserved for determination in the main application.

The following order is made:

1. The application to authorise the sale of certain assets which are subject to the restraint order, Annexure "TW1", is postponed pending the determination of the appeal in the Supreme Court of Appeal under Case No. 19884/2004.

2. The costs of the application for the postponement, including the 17th respondent's costs, are reserved for determination in the main application.

ON BEHALF OF THE APPLICANT:ADV NPG REDMAN (Counsel for 1st to 14th respondents in the main application).

Instructed by:

(1st to 14th respondents in the main application):Attorney O'Shannon Little

ON BEHALF OF APPLICANT (Applicant in the main application):ADV S L JOSEPH S.C.

Instructed by: (Applicant in the main application): Attorney Paul Kampel

ON BEHALF OF THE 17TH

RESPONDENT: ADV M FEINSTEIN

Instructed by (For 1 7th Respondent):Van Hulsteyns

DATE OF HEARING: 25 and 27 JANUARY 2006

DATE OF JUDGMENT:27 JANUARY 2006

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