IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

Case No: 94/2000
In the matter between:
THE NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS

Appellant

and
REBUZZI, CHARLOTTE ELIZABETH

Respondent

Coram:
Vivier, ADCJ; Marais, Mthiyane, JJA; Cloete and Nugent,
AJJA.
Heard:
8 November 2001
Delivered: 23 November 2001

Summary: Prevention of Organised Crime Act 121 of 1998 – restraint order –
whether permissible where victim of crime has a claim against the
defendant.

J U D G M E N T

Nugent AJA:
[1] This appeal concerns a provisional restraint order that was made in
terms of s 26 of the Prevention of Organised Crime Act 121 of 1998 (as
amended by Acts 24 and 38 of 1999) and thereafter set aside.  The
appellant now appeals against the order setting it aside with leave granted
by the Court a quo.  The respondent has abided the judgment of this Court.
[2] Chapter 5 of the Act (which encompasses sections 12 to 36) is
designed to enable a court to deprive a convicted person of the proceeds of
crime.    Its foundation is s 18(1), which permits a court that has
convicted a person of an offence to make what is referred to as a
‘confiscation order’.   The subsection reads as follows:
‘Whenever a defendant is convicted of an offence the court convicting the
defendant may, on the application of the public prosecutor, enquire into
any benefit which the defendant may have derived from –
(a)
that offence;

(b)
any
other
offence
of
which
the
defendant
has
been
convicted at the same trial; and
(c)
any criminal activity which the court finds to be sufficiently
related to those offences,
and, if the court finds that the defendant has so benefited, the court may,
in addition to any punishment which it may impose in respect of the
offence, make an order against the defendant for the payment to the State
of any amount it considers appropriate and the court may make any further
orders as it may deem fit to ensure the effectiveness and fairness of that
order.’

[3] The amount for which a confiscation order may be made is restricted
to the lesser of (a) the monetary value of the proceeds of the offences or
related criminal activity or (b) the net value of the sum of the defendant’s
property and certain defined gifts (called ‘affected gifts’) made by the
defendant (s 18(2)).
[4] Sections 25 and 26 (which fall within Part 3 of Chapter 5) allow for a
‘restraint order’ to be made in anticipation of the granting of a confiscation
order.  The purpose of a restraint order is to preserve property so that it
might in due course be realised in satisfaction of a confiscation order.

Section 26(1) authorises the National Director of Public Prosecutions to
apply to a High Court, ex parte, for an order ‘prohibiting any person …
from dealing in any manner with any property to which the order relates.’
The remaining provisions of Part 3 confer wide powers upon the court as to
the terms of a restraint order.  In particular, it may appoint a curator bonis
to take charge of the property that has been placed under restraint, order
any person to surrender the property to the curator, authorise the police to
seize the property, and place restrictions upon encumbering or transferring
immovable property.   It may also make a provisional restraint order having
immediate effect and simultaneously grant a rule nisi  calling upon the
defendant to show cause why the order should not be made final.
[5] The circumstances in which a restraint order may be made are
provided for in s 25(1) as follows:
‘A High Court may exercise the powers conferred on it by section 26(1)
[i.e. the powers to make restraint orders] –

(a)
when –
(i)
a prosecution for an offence has been instituted
against the defendant concerned;
(ii)
either a confiscation order has been made against that
defendant or it appears to the court that there are
reasonable grounds for believing that a confiscation
order may be made against that defendant; and
(iii)
the proceedings against that defendant have not been
concluded;  or

(b)
when –
(i)
that court is satisfied that a person is to be charged
with an offence;  and
(ii)
it appears to the court that there are reasonable
grounds for believing that a confiscation order may
be made against such person.’

[6] The restraint order that is now in issue was applied for by the
appellant at the request of a company known as PG Bison Ltd (‘the
company’) which formerly employed the respondent.  The application was
supported by the evidence of, amongst others, Mr Flockton, the internal
audit manager of the company, and Mr van der Walt, a partner in the
auditing firm KPMG.

[7] The respondent was formerly employed at the company’s Boksburg
factory as a senior credit co-ordinator.   Her duties included receiving the
proceeds of cash sales (a combination of cash and cheques) together with
the relevant documentation and arranging for them to be deposited into the
company’s bank account.
[8] According to the evidence of Mr Flockton the company operated an
incentive scheme which allowed certain customers a rebate on the purchase
price of goods, the amount of which depended upon the quantity of goods
purchased.  The rebate was calculated annually and was paid to the
customer either by means of a cheque or by crediting the customer’s
account.  The respondent was responsible for distributing the cheques to
some of the company’s customers.
[9] In about the middle of 1999 Mr Flockton received information which
caused him to investigate certain transactions.  He  discovered that various

cheques drawn by the company in payment of rebates owing to customers
had been deposited into the company’s bank account in place of the
proceeds of cash sales.  He inferred from these and other related
transactions that the respondent had stolen the proceeds of the cash sales
and had concealed the theft by depositing the cheques instead.  The
company engaged Mr van der Walt to conduct a more comprehensive
investigation and he concluded that the respondent had stolen at least R897
066 during the period from 1 April 1997 to 30 July 1999 by using that
technique.
[10] It was also established that the respondent owned a residential
property in Edenvale and that she had twenty-four accounts of various
kinds at Nedbank and First National Bank.  At the request of the company
the appellant applied to the High Court at Johannesburg, ex parte, for a
provisional restraint order, and the order was made.   It is not necessary to

set out its provisions in any detail.  It is sufficient to say that it incorporated
the following features.  It prohibited all persons from dealing with the
respondent’s property and bank accounts and a curator bonis was appointed
to take charge of them.  The curator was also authorized to seize other
property of the respondent (up to a certain value) that might be discovered.
The respondent was ordered to disclose certain information to the curator
and I will return to that portion of the order later in this judgment.
[11] The curator duly took charge of the property and the bank accounts.
The respondent opposed the confirmation of the order and filed an affidavit
in support of her opposition.  On the extended return day the matter came
before Goldstein J who set aside the provisional order (his judgment is
reported as National Director of Public Prosecutions v Rebuzzi 2000 (2)
SA 869 (W)).

[12] The learned judge was of the view that the legislature could not have
intended a confiscation order to be made where there was an identifiable
victim who had a claim for recovery of the proceeds of the crime.
Otherwise, so the learned judge reasoned, the realisation of the defendant’s
assets in satisfaction of the confiscation order would deprive the victim of
the means of satisfying his claim.  The learned judge put the matter thus (at
875C-D):
‘ [T]he proceeds of confiscation orders are intended by the Act to accrue
to the State.  It follows that if a court were to convict the respondent and
were to make a confiscation order in terms of s 18 and were to give effect
to such intention, it would deprive the complainant of the benefit of
obtaining payment of its loss …’

[13] After noting that s 18(1) confers a discretion on the court concerned
the learned judge continued as follows (at 875E-F):
‘ [I]t seems to me inconceivable that a confiscation order could be made in
the present circumstances where PG Bison Ltd, a known complainant, is
entitled to compensation or repayment of money stolen which far exceeds

the total assets under restraint.  It would be absurd to provide for the
granting of a confiscation order which would deprive the complainant of
compensation for the wrong perpetrated upon it.’

The learned judge concluded that there was thus no reason to believe a
confiscation order might be granted in the event that the respondent is
convicted and it was not competent for a restraint order to be made.
[14] In my view a court is not precluded from making a confiscation
order merely because the victim of the crime has a claim for recovery of the
proceeds nor is that a consideration that needs even to be weighed when it
exercises its discretion.  A confiscation order does not purport to authorise
the confiscation of particular property of the defendant.  It is no more than
an order upon the defendant to pay to the State a specified sum of money
(which may not exceed the amounts referred to in s 18(2)) and by itself it
does not deprive the victim of the means for recovering his loss.

[15]  Bearing in mind that s 23 accords to such an order the effect of a
civil judgment I have assumed (without deciding) that the State might
execute it in the ordinary way in which case a claim by the victim would
indeed compete with it for the property of the defendant.  Even if that were
to be so, however, it is far more likely that the State will enforce the order
by invoking instead the mechanism that has been created specifically for
that purpose by Part 4 of Chapter 5 (sections 30 to 36).
[16] Where a confiscation order has been made and its effect has become
final s 30(2) of the Act permits a High Court to appoint a curator bonis (if
one has not already been appointed) whose function it is to realise certain
defined property of the defendant and to distribute the proceeds.  The
curator acts throughout under the supervision of the High Court which may
direct how the property is to be realised and to whom the proceeds are to be
distributed.

[17] In my view sections 30(5) and 31(1) make it clear that the legislature
did not intend a confiscation order to be withheld merely because an
identifiable victim has an equivalent claim for recovery of his loss.   Not
only do those sections recognise that a confiscation order might co-exist
with a claim by the victim (which would hardly have been provided for if
the legislature intended that to be avoided) but they provide the means to
avoid the claims competing for the defendant’s property.  Where the
defendant’s property has not yet been realised s 30(5) expressly authorises
the High Court to suspend the realisation until the victim’s claim or
judgment has been met, and where the property has been realised s 31(1)
enables the High Court to direct the manner in which the proceeds are to be
distributed.  There is no reason to think that a court that is called upon to
give such directions will not recognize the claim of a victim and order that
it be paid before any moneys accrue to the State bearing in mind that s

31(1) expressly provides that it does not have a preferential claim.  Thus
the making of a confiscation order need not deprive the victim of the means
of recovering his loss, nor is there reason to think that it will ordinarily do
so.
[18] The learned judge in the court a quo said the following of those
provisions (at 878B-C):
‘The fundamental answer to counsel’s reliance on ss 30(5) and 31(1) is,
however, that the Legislature could hardly have intended a Court to make
a confiscation order which would not have the effect of any money being
paid to the State but would merely put the complainant to the expense of
Court proceedings in order to protect its rights to the proceeds of the
assets to be realised or already realised.’

[19] The primary object of a confiscation order is not to enrich the State
but rather to deprive the convicted person of ill-gotten gains.  In my view it
is therefore not significant that in some cases the State might end up
receiving nothing.  It is because the purpose of such an order is to prevent

the convicted person from profiting rather than to enrich the State that the
court’s inquiry in terms of s 18(1) is directed towards establishing the
extent of his benefit rather than towards establishing who might have
suffered loss.  Indeed, in the case of so-called “victimless” crimes, such as
drug-dealing and the like, there will be no person who could be said to have
suffered a loss.   That a confiscation order might not be necessary in order
to deprive the convicted person of the proceeds of crime (i.e. where there is
an identifiable victim who has suffered loss) does not seem to me to be a
reason to withhold such an order.  It still serves the purpose of ensuring
that, irrespective of whether claims are in due course established, the
convicted person will not remain in possession of the proceeds.
[20] The respondent did not appear before us to advance any other
grounds for setting the order aside and I see no reason to do so.  In  her
opposing affidavit the respondent denied that she had committed the

crimes.  A court is not required to be satisfied of the guilt of the defendant
before a restraint order is granted.  What is required, inter alia, is only that
there should be reasonable grounds for believing that the defendant may be
convicted.   The material facts in the present case are substantially not in
dispute.  The disputes, such as they are, relate rather to the proper
inferences to be drawn from those facts.  It is not necessary to traverse
them in detail.  It is sufficient to say that in my view there are indeed
reasonable grounds for believing that the respondent may be convicted and
that a confiscation order may be made.
[21] There is, however, one reservation.  Section 25(7) of the Act
purports to confer a discretion on a court, when making a restraint order, to
compel the defendant to disclose information.  The provisional order that
was granted in the present case included the following:

‘1.9
Directing the Defendant to disclose forthwith to the appointed
curator bonis on affidavit all affected gifts she has made over the
past seven years as well as property other than those mentioned in
(the schedules to the order) in which she holds any interest, as
well as the location thereof.

1.10
Directing that the information disclosed by the Defendant in terms
of the affidavit … may not be used against the Defendant in a
criminal trial pertaining to the subject matter of this application.’

[22] The term ‘affected gift’ is defined by s 12(1) of the Act to mean any
gift (that word is given an extended meaning by s 16) :
‘(a)
made by the defendant concerned not more than seven years before
the fixed date  [which is defined]; or
(b)
made by the defendant concerned at any time, if it was a gift
(i)
of property received by that defendant in connection with an
offence committed by him or her or any other person; or
(ii)
of property, or any part thereof, which directly or indirectly
represented in that defendant’s hands property received by him
or her in that connection,
whether any such gift was made before or after the commencement of this
Act’.

[23] It is apparent that the order sought by the appellant will compel the
respondent, under threat of the penalties for perjury and contempt of court,

to make disclosures that have the potential to be self-incrimating not only
in relation to the commission of the offences that are now in issue but also
in relation to the commission of offences as yet unknown to the State.
[24] The law has an inherent resistance to placing a person under
compulsion to make self-incriminating disclosures which is now reflected
in s 35 of the Constitution.  Such compulsion, when subject to a restriction
in similar terms to the restriction proposed in the present case on the use of
any disclosures that are made, has been held to be unobjectionable in the
context of ss 415 and 417 of the Companies Act 61 of 1973 (Parbhoo and
Others v Getz NO and Another 1997 (4) SA 1095(CC); Ferreira v Levin
NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1)
SA 984 (CC)).  Whether it is likewise unobjectionable in the context of the
Act that is now in issue is not necessary to decide because in my view the
order ought nevertheless not to be granted in the present case.  In my view

an order compelling a defendant to disclose information is not to be had
simply for the asking: while a court has a discretion to grant such an order
it must be exercised upon proper grounds.  There is no suggestion that the
respondent might have other property that is being concealed or might have
made affected gifts or that she might have previously engaged in criminal
activity.  In my view no factual basis has been laid for granting the order
that is now sought.
[25] With that reservation the appellant was entitled to confirmation of
the provisional order, and to that extent the appeal must succeed.  The
amount that was alleged to have been stolen was incorrectly reflected in the
provisional order and falls to be corrected.  The respondent, who did not
oppose the appeal, could have done nothing to avoid the necessity for the
appeal, and in those circumstances she ought not to be held liable for the
costs.

[26] Accordingly the appeal is upheld.  The order of the court a quo is set
aside and the following order is substituted therefor:
‘The provisional restraint order granted on 2 December 1999, but for
paragraphs 1.9 and 1.10, is confirmed with the following amendment: the
amount of R974 055 is deleted wherever it appears and substituted by the
amount of R897 066.  The respondent is ordered to pay the costs
occasioned by her opposition to the application which are to include the
costs of two counsel.’

______________

NUGENT AJA

Vivier
ADCJ)
Marais
JA)

Mthiyane
JA)
Cloete            AJA)
concur