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National Director pf Public Prosecutions v Mtwazi and Others (441/2016) [2017] ZAECBHC 4

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National Director pf Public Prosecutions v Mtwazi and Others (441/2016) [2017] ZAECBHC 4

9th June 2017

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[1] On 23 August 2016 the applicant obtained a provisional restraint order against the parties pursuant to the provisions of section 26 of the Prevention of Organised Crime Act, No 121 of 1998 (“POCA”).  It is not material to repeat the contents of the order.

[2] It was granted in the usual format coupled with a rule nisi, returnable on 4 October 2016 initially, calling upon the parties to show cause why the order, issued with immediate effect, should not be made final.  The return date has been extended over a number of postponements to the date of this judgment.

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[3] The objective of the provisional restraint order was evidently to preserve certain immovable property of the first defendant and respondent identified at the time of the grant of the rule nisi, and other “realisable property”[1] so that it may in due course be realised in satisfaction of a confiscation order (which the state suggests is reasonably anticipated against the defendants), and to prevent the dissipation or concealment of these assets.

[4] The first defendant is in the employ of the Department of Education as a senior administration clerk in the examinations section based in Schornville.  The respondent is his wife to whom he is married in community of property and they reside together in King William’s Town in the property which has been attached by the curator appointed pursuant to the provisional restraint order.  She has been joined as a respondent in these proceedings as she has a clear interest in the property to which the order relates by virtue of her marriage to the first defendant.  The second defendant is also described as an employee of the Department of Education.  She is a Grade R practitioner based at a school in Frankfort.  She resides in Bhisho.

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[5] The defendants and the respondent in this matter were served with the papers in this matter only after the first return date.  The first defendant filed an answering affidavit in his own capacity and on behalf of the respondent, but no authority to represent her interest was put up by him, neither did she file a supporting affidavit.  The omission is not critical as far as I am concerned though for the reasons which follow.  I will assume for present purposes that she merely aligns herself with the first defendant’s denial that he criminally appropriated any funds of the Department of Education or was complicit in the payment of unauthorized marking fees to the second defendant as alleged in the indictment to which I will shortly refer.  I say so because she raises no independent basis to show cause why the restraint order should not be made final against her.  She stands or falls as it were by the first defendant’s denial aforesaid.

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