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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                                                                    1^st Defendant

 

KISHENE CHETTY                                                                       2^nd Defendant

 

KRISHNA CHETTY                                                                       3^rd Defendant

 

MARICHA JOUBERT                                                                    4^th Defendant

 

KUMARASEN PRITHIVIRAJ                                                         5^th Defendant

 

VOLAN PRITHIVIRAJ                                                                   6^th Defendant

 

RAMAHLAPI JOHANNES MOKWENA                                          7^th Defendant

 

JAMES RAMANJALUM                                                                8^th Defendant

 

JABEZ NAIDOO                                                                           9^th Defendant

 

LESETJA DAVID MOGOTLANE                                                   10^th Defendant

 

THOMAS DUMASI MARIMA                                                         11^th Defendant

 

VEERAN NAIPAL                                                                         12^th Defendant

 

ALPHEUS NKOSIBAKHE MAKHETHA                                         13^th Defendant

 

MARCEL DUAN PATRICK MARNEY                                            14^th Defendant

 

JACOBA MAGDELENA HAVENGA                                              15^th Defendant

 

KYSAMULA MORRIS MABASA                                                   16^th Defendant

 

WILLEM JOHANNES JANSEN                                                     17^th Defendant

 

HARRY MKHULU MILANZI                                                          18^th Defendant

 

RUDOLPH JOHANNES JACOBUS SMIT                                      19^th Defendant

 

MARNA LEANA BORNMAN                                                         20^th Defendant

 

MODIKWA BRENDA TSEBENHLANE                                           21^st Defendant

 

PRINESH NAIDOO                                                                       22^nd Defendant

 

ANDRÉ SIMPSON                                                                        23^rd Defendant

 

ZUZETTE MAGRIETA SPANG                                                      24^th Defendant

 

MALUMISIS ABEL MAFHOHO                                                     25^th Defendant

 

RUMILA VADIVALOO NAIDOO (PILLAY)                                       26^th Defendant

 

ROSINA MILANZI                                                                             27^th Defendant

 

ABIGAYLE ABNER ESAU                                                                28^th Defendant

 

SALAMINA KHOZA                                                                          29^th Defendant

 

LETHABO MABORE MAMABOLO                                                 30^th Defendant

 

SCHALK WILLEM COETZEE                                                          31^st Defendant

 

LINDA LUBANYANA                                                                        32^nd Defendant

 

ZELDA FUHRI BOTHA                                                                     33^rd Defendant

 

PIETER JOHANNES JACOBS                                                        34^th Defendant

 

MAMOHUBA HELEN MODIBA                                                         35^th Defendant

 

TSHEPO EDWIN MODIKWE                                                             36^th Defendant

 

FAMANDA SAMSON MASHELE                                                       37^th Defendant

 

JOSEPH MONYOKO                                                                          38^th Defendant

 

LAWRENCE PHEELO THAHANE                                                     39^th Defendant

 

ANNA CATHARINA ELIZABETH DU PREEZ                                   40^th Defendant

 

PRAGALATHAN GOUNDEN                                                             41^st Defendant

 

TSHEPHO ANDREW MASHEGO                                                    42^nd Defendant

 

RAVIN RAMLALL                                                                             43^rd Defendant

 

HANISHA CHETTY                                                                           44^th Defendant

 

JANE MTHEMBU                                                                              45^th Defendant

 

SERANG TRADING (PTY) LTD (2016/504428/07)

(AS REPRESENTED BY THE 2^ND DEFENDANT)                           46^th Defendant

 

ARGAN AUTOMOTIVE MECHANICAL INNOVATION AND

 TOWING SOLUTIONS (PTY) LTD (2016/504428/07)

(AS REPRESENTED BY THE 6^TH DEFENDANT)                           47^th Defendant

 

BLUE VOICE CONSULTING AND PROJECTS CC

(2011/018413/23)

(AS REPRESENTED BY THE 27^TH DEFENDANT)                         48^th Defendant

 

BAMBANANI MARKETING AND PROJECTS

(2009/206512/23)

(AS REPRESENTED BY THE 2^ND DEFENDANT)                           49^th Defendant

 

BAROMA CONSTRUCTION AND OFFICE                                    50^th Defendant

CONSUMABLES (PTY) LTD (2012/059965/07)

(AS REPRESENTED BY THE 18^TH DEFENDANT)

 

BAJATWALA DISTRIBUTORS (PTY) LTD (2017/359724/07)

(AS REPRESENTED BY THE 43^RD DEFENDANT)                         51^st Defendant

 

CICADA AUTO ENGINEERING AND MECHANICAL

SOLUTIONS (PTY) LTD (2016/504477/07)

(AS REPRESENTED BY THE 32^ND DEFENDANT)                         52^nd Defendant

 

COUNTERPOINT TRADING CC (2002/049187/23)

(AS REPRESENTED BY THE 3^RD DEFENDANT)                           53^rd Defendant

 

DITORO TRADING CC (2004/033581/23)

(AS REPRESENTED BY THE 22^ND DEFENDANT)                         54^th Defendant

 

EMETHONJENI FURNITURE AND PROJECTS (PTY)

LTD (2012/059956/07)

(AS REPRESENTED BY THE 18^TH DEFENDANT)                         55^th Defendant

 

GAUTOOLS (PTY) LTD (2012/177517/07)

(AS REPRESENTED BY THE 1^ST DEFENDANT)                           56^th Defendant

 

IMPOKANE GENERAL TRADE AND DISTRIBUTION

(PTY) LTD (2017/249446/07)

(AS REPRESENTED BY THE 1^ST DEFENDANT)                           57^th Defendant

 

IMBOBEZI ENTERPRISES (PTY) LTD (2017/356800/07)

(AS REPRESENTED BY THE 22^ND DEFENDANT)                         58^th Defendant

 

ISASALETHU CONSTRUCTION AND OFFICE

CONSUMABLES (PTY) LTD (2012/060132/07)

(AS REPRESENTED BY THE 29^TH DEFENDANT)                         59^th Defendant

 

ISIMBALI TRADING AND PROJECTS (PTY) LTD

(2012/061888/07)

(AS REPRESENTED BY THE 18^TH DEFENDANT)                         60^th Defendant

 

KLIPFONTEIN LEDWABAS GENERAL DEALERS CC

(2003/013811/23)

(AS REPRESENTED BY THE 26^TH DEFENDANT)                         61^st Defendant

 

KGOTHO TRADING ENTERPRISE (PTY) LTD

(2011/004261/07)

(AS REPRESENTED BY THE 5^TH DEFENDANT)                           62^nd Defendant

 

MAFUTA MARKETING SOLUTIONS CC

(2005/0550065/23)

(AS REPRESENTED BY THE 44^TH DEFENDANT)                         63^rd Defendant

 

MPAPADI TRADING CC (2006/073470/23)

(AS REPRESENTED BY THE 3^RD DEFENDANT)                           64^th Defendant

 

SEMI BUILD 303 CC (2002/068769/23)

(AS REPRESENTED BY THE 2^ND DEFENDANT)                           65^th Defendant

 

SIFIKILE FURNITURE AND PROJECTS (PTY) LTD

(2012/059968/07)

(AS REPRESENTED BY THE 29^TH DEFENDANT)                         66^th Defendant

 

SIYANGOBA TRADING AND PROJECTS (PTY) LTD

(2012/061892/07)

(AS REPRESENTED BY THE 3^RD DEFENDANT)                           67^th Defendant

 

SUPER STATIONERY DISTRIBUTORS CC

(2005/014625/23)

(AS REPRESENTED BY THE 5^TH DEFENDANT)                           68^th Defendant

 

THANDEKA RMT MARKETING SOLUTIONS CC

(2007/221864/23)

(AS REPRESENTED BY THE 27^TH DEFENDANT)                         69^th Defendant

 

UMBANATIE TRADING AND PROJECTS (PTY) LTD

(2009/153030/07)

(AS REPRESENTED BY THE 5^TH DEFENDANT)                           70^th Defendant

 

VATIKA TRADING AND PROJECTS (PTY) LTD

(2014/052777/07)

(AS REPRESENTED BY THE 1^ST DEFENDANT)                            71^st Defendant

 

KISHENE CHETY N.O. (IN HIS CAPACITY AS JOINT

TRUSTEE OF THE CHETTY FAMILYTRUST)

 IT 000066/2016(G)                                                                         1^st Respondent

 

HANISHA CHETTY N.O. (IN HER CAPACITY AS

JOINT TRUSTEE OF THE CHETTY FAMILYTRUST)

IT 000066/2016(G)                                                                          2^nd Respondent

 

LAHITA CHETTY                                                                            3^rd Respondent

 

VASANTHI PRITHVIRAJ                                                                4^th Respondent

 

SIBONGILE NOSIPHO MOGOTLANE                                           5^th Respondent

 

SUSARA NAIPAL                                                                           6^th Respondent

 

MARGARET FULUFHELO MAFHOHO                                          7^th Respondent

 

THABISO SETSEAKOBO WALTER MPHAHLELE                        8^th Respondent

 

RIAAN BOTHA                                                                               9^th Respondent

 

ALETTA ELIZABETH JACOBS                                                    10^th Respondent

 

SEJABATI CYNTHIA MODIKWE                                                  11^th Respondent

 

O’ NIEL PERUMAL                                                                        12^th 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 3^rd, 53^rd and 64^th 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 3^rd, 53^rd, and 64^th 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[1], 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[2], 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 3^rd, 53^rd and 64^th 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

 

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