National Director of Public Prosecutions v Phillips and Others

The National Director of Public Prosecutions (NDPP) obtained a provisional restraint order in December 2000 under section 26 of the Prevention of Organised Crime Act 121 of 1998 (POCA) against Andrew Lionel Phillips and several entities he controlled, restraining them from dealing with their property pending possible confiscation following criminal prosecution. A curator bonis was appointed under section 28 to take control of the assets, including businesses operated from the Autumn Street property in Rivonia, which subsequently ceased trading. Numerous disputes arose concerning the curator’s powers, funding, and failure to maintain properties, leading to several interlocutory applications and orders. In June 2003, the respondents applied to the Johannesburg High Court for rescission of the restraint order, not on statutory grounds provided in POCA, but on the basis of the court’s inherent jurisdiction, arguing that the order had become impossible to implement and defeated its purpose. Louw AJ granted rescission. The NDPP appealed to the Supreme Court of Appeal.

The appeal was upheld and the order of the Johannesburg High Court rescinding the restraint order was set aside; the restraint order remained in force.

This decision authoritatively confirms that restraint orders under the Prevention of Organised Crime Act are governed strictly by the statute and are not subject to a court’s inherent jurisdiction for rescission or variation. It clarifies the final and appealable nature of restraint orders and delineates the distinction between restraint orders under section 26 and curator-related orders under section 28. The case strengthens the NDPP’s asset-preservation powers and provides certainty on the limits of judicial discretion in POCA proceedings.