Knoop NO and Others v National Director of Public Prosecutions

The National Director of Public Prosecutions (NDPP) obtained a preservation of property order under Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 (POCA) against shares and business assets of Optimum Coal Mine (Pty) Ltd (OCM) and Optimum Coal Terminal (Pty) Ltd (OCT), both of which, together with their holding company Tegeta Exploration and Resources (Pty) Ltd, were in business rescue under Chapter 6 of the Companies Act 71 of 2008. The preservation order was granted after a business rescue plan for OCM had already been adopted by creditors and shortly before its implementation deadline. The NDPP alleged that the assets constituted proceeds and instrumentalities of crimes linked to State Capture and the Gupta family’s acquisition of Optimum. The business rescue practitioners, affected creditors, Liberty Coal (Pty) Ltd, Templar Capital Ltd and the National Union of Mineworkers opposed the preservation order, arguing that it unlawfully interfered with the statutory business rescue process. They appealed against the High Court’s grant of the preservation order.

The appeal was struck from the roll with costs, including the costs of two counsel, payable jointly and severally by the appellants.

This judgment clarifies South African law on the appealability of asset forfeiture orders by definitively holding that preservation of property orders under Chapter 6 of POCA are not appealable. It limits the reach of earlier decisions that appeared to allow appeals against such orders and reinforces the strict application of the Zweni test, thereby preventing piecemeal appeals and promoting procedural finality in civil forfeiture proceedings. The case is also significant for delineating the relationship between POCA asset forfeiture mechanisms and the Companies Act business rescue regime.