CCT56/12

2013 (1) SACR 429 (CC)

2013 (4) BCLR 379 (CC)

Cameron J Majority judgment

Zondo J separate judgment

Jafta J minority judgment

19 February 2013

http://hdl.handle.net/20.500.12144/3681

Application for leave to appeal against the judgment of the Full Court of the Johannesburg High Court: National Director of Public Prosecutions v Elran (A5050/10, 06/4577) [2012] ZAGPJHC 138 (8 March 2012).

Application for leave to appeal against an order granting Mr Elran legal expenses from his seized assets. The case hinged on the interpretation of section 44(2) of the Prevention of Organised Crime Act, 1998 (POCA). The question was whether and under what circumstances a defendant, against whose assets the NDPP has obtained a preservation order, could obtain an order for legal (and living) expenses from property that is subject to the preservation order. The majority held that the Court should not approach powers POCA grants with reserve. The statute is an indispensable friend to democracy, the rule of law and constitutionalism. The wording of section 44(2) is clear. Where an applicant has failed to show both that he or she cannot meet the expenses concerned out of property not covered by the order and he or she has disclosed all interests in the property, a court does not have a power to grant an applicant expenses from preserved property. And the applicant’s failure to disclose certain information meant that the Court cannot exercise its discretion to grant the order. The minority held that the requirements in section 44(2) are not a precondition, but merely a consideration to be balanced in exercising the statutory discretion. Hence failure to disclose information does not bar a Court from exercising its discretion. Majority: Cameron J (Mogoeng CJ, Froneman J, Van der Westhuizen J (except for [90]) and Zondo J concurring). Separate concurrence: Zondo J (Mogoeng CJ, Cameron J and Froneman J concurring). Minority: Jafta J (Moseneke DCJ, Nkabinde J and Yacoob J).