Naidoo and Others v National Director of Public Prosecutions and Another

Mr Rajan Naidoo was charged with 119 counts of dealing in unwrought metals. The National Director of Public Prosecutions obtained provisional restraint orders under the Prevention of Organised Crime Act 121 of 1998 (POCA) against Mr Naidoo, his former spouse Mrs Dolly Naidoo, and two companies wholly owned by her, on the basis that certain assets constituted ‘affected gifts’. After being charged, Mr Naidoo applied for an order permitting payment of his legal expenses from assets restrained in the hands of Mrs Naidoo and the companies. The High Court granted the order, holding that assets restrained as affected gifts effectively belonged to Mr Naidoo. The Supreme Court of Appeal reversed this decision. The applicants sought leave to appeal to the Constitutional Court.

The application for leave to appeal was dismissed. No order as to costs was made.

The case clarifies the scope of section 26(6) of POCA and confirms that accused persons may not fund their legal expenses from restrained assets held by third parties, even if those assets are alleged to be affected gifts. It affirms the constitutionality of POCA’s restraint scheme and balances fair trial rights against the state’s interest in preventing dissipation of criminal proceeds.