From: The Registrar, Supreme Court of Appeal

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v MULLER CONRAD RAUTENBACH AND WESSEL HENDRICK MOOLMAN RAUTENBACH

Please note that the media summary is intended for the benefit of the media and does not form part of the judgment of the Supreme Court of Appeal.

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The Supreme Court of Appeal (SCA) today (22 November 2004) reinstated a restraint order that the National Director of Public Prosecutions had obtained over property of Mr Muller Conrad Rautenbach and members of his family in terms of the Prevention of Organised Crime Act 12 of 1998.

The National Director of Public Prosecutions had applied to the Johannesburg High Court for an order placing the property under restraint, alleging that Mr Rautenbach was to be charged with various offences, including the offence of fraud relating to the conduct of the Hyundai motor vehicle importation business that he had conducted, and that there were reasonable grounds for believing that he might be convicted and that he might be ordered to pay to the State an amount representing the proceeds of the offences. The Act authorizes a court in those circumstances to issue an order prohibiting any person from dealing with property in the interim so as to ensure that the property is available to meet such an order. The NDPP sought such an order in the present case in relation to property owned by Mr Rautenbach and members of his family.

The Johannesburg High Court initially made such an order that was provisional only and subject to reconsideration after Mr Rautenbach and other interested parties had been heard. Upon reconsideration of the matter the High Court set aside the provisional order on the grounds that the NDPP had not shown that it was probable that Mr Rautenbach had committed any of the offences. The NDPP appealed to the SCA against that decision.

In upholding the appeal the SCA said that the High Court had approached the matter incorrectly. It said that the NDPP was not required to show that the person concerned would indeed be convicted of the offence, nor even that it was probable that he would be convicted, but only that there were reasonable grounds for believing that he might be convicted and that an order for the payments of the proceeds of the criminal activity might be made. The court said that the evidence produced by the NDPP satisfied that test and the provisional restraint order should have been confirmed.

While the court was unanimous that the NDPP was entitled to a restraint order a minority of the court said that the extent of the property that the NDPP sought to be placed under restraint was disproportionate to the amount that Mr Rautenbach might in due course be ordered to pay to the State, and that the order should relate only to a limited portion of the property concerned.