Falk and Another v National Director of Public Prosecutions

Mr Alexander Gerhard Falk, a German businessman, and Falk Real Estate SA (Pty) Ltd challenged the registration and enforcement in South Africa of a restraint order issued by a German court in criminal proceedings against Mr Falk. The German restraint order, aimed at preserving assets allegedly derived from criminal conduct, was registered in South Africa under section 24 of the International Co-operation in Criminal Matters Act 75 of 1996 (ICCMA). Following registration, the National Director of Public Prosecutions (NDPP) obtained an interdictory (ancillary) order from the Western Cape High Court under section 26(8) of the Prevention of Organised Crime Act 121 of 1998 (POCA), restraining the applicants from dealing with specified South African assets. After Mr Falk was convicted in Germany but the trial court declined to make a confiscation order (a decision later appealed by the prosecution), the applicants sought to set aside the registration of the foreign restraint order and the South African interdictory order, arguing that the foreign criminal proceedings had been concluded and that the continued restraint constituted an unlawful and arbitrary deprivation of property.

Leave to appeal was granted, but the appeal was dismissed. The registration of the German restraint order and the interdictory restraint orders in South Africa remained in force.

This case is significant for clarifying the interaction between POCA and ICCMA in South African law. It establishes that ICCMA exclusively governs the registration and setting aside of foreign restraint orders, reinforcing South Africa’s commitment to international cooperation in combating organised crime and asset dissipation. The judgment also affirms that restraint orders pending foreign confiscation proceedings do not constitute arbitrary deprivation of property when properly authorised by statute.