When the first indications of a significant accounting fraud scandal emerged in
Consequently, in
Further to the above, the preservation order permits the attachment as well as the preservation of evidence and is not a substitute for possessory or proprietary claims. The Affiliates will have the right to the usage and enjoyment of the assets but will not be allowed to dispose of any of the assets. Furthermore, the preservation order allows for the daily operations of businesses as well as the maintenance of the attached assets to proceed, as the assets are preserved until such a time that they need to be realised.
In terms of Regulation 19(1) of the Exchange Regulations the court made the order. Regulation 19 reads:
''19. (1) The
(2) If any person makes any statement in any information furnished in compliance with such an order which is in conflict with any other statement previously made by him in giving information required in connection with the subject matter of such order, he shall be deemed to have made an incorrect statement in terms of Regulation 22 and may, on an indictment, summons or charge alleging that he made the two conflicting statements, be convicted of making an incorrect statement in contravention of the said Regulation 22 upon proof of the two statements in question and without proof as to which of the said statements was incorrect, unless he proves that when he made each statement he believed it to be true.''
Additionally,
'' ... the absence of express statutory authority was no bar to the acceptance of
Furthermore, Section 25 (1)(b)(i) of The Prevention of Organised Crime Act 121 of 1998 ("POCA") states that the
Moreover, asset forfeiture is an integral part of the fight against corruption with the aim of taking the profitability away from economically motivated crimes. The preservation order was obtained as a result of excellent cooperation by a top-notch team from the
The purpose of the preservation order is to interdict, restrain and prohibit the Affiliates, from dealing in any manner with the funds held in the name of the Affiliates, as well as disposing of the property (i.e., dissipating assets) which is subject of the litigation and can be realised at a later stage. The application was brought on the basis that the Affiliates had benefitted or had been enriched as a result of a Jooste and others contravening the regulations.
Socialite,
Forensic Experts, Cyanre, the
This order has highlighted the effectiveness of legislation as well as the different avenues available for state entities to attach and preserve assets without the risk of the assets being dissipated. SARB is fortunate to be able to rely on Regulation 22C which provides for the recovery of any money or goods, irrespective of whose possession it is in, when that person has benefitted or been enriched as a result of a third party contravening the regulations. The SARB may thereafter block and attach such assets. Integral to this section, SARB is able to attach assets which are not directly proceeds of the original crimes.
If Steinhoff or other persons or entities were used to commit transgressions of the Exchange Control Regulations, the SARB can recover those assets from the people and companies or trusts who benefitted and were enriched from the illegal activities. Even if these assets were not really purchased with money unlawfully gained from Steinhoff, they may be forfeited to the state if the SARB can prove its allegations. If Jooste is found guilty, a confiscation order will be granted, regardless of whether Jooste is still in possession of the proceeds.
In the cases of Mohunram v NDPP 4 SA 222 (CC) 237 and Prophet v NDPP 2005 2 SACR 670 (SCA) it was held that, in relation to asset forfeiture,
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Kirshia Pillay
Fairbridges Wertheim Becker
Sandton
2196
E-mail: attorneys@fairbridges.co.za
URL: www.fwbattorneys.co.za/
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