National Director of Public Prosecutions v Basson

The respondent, Wouter Basson, was indicted on numerous charges of fraud and theft allegedly committed before the commencement of the Prevention of Organised Crime Act 121 of 1998 (POCA). The National Director of Public Prosecutions applied ex parte in the High Court for a provisional restraint order under Chapter 5 of POCA to preserve various assets allegedly constituting proceeds of crime, pending possible confiscation following conviction. A provisional restraint order was granted but later set aside by the High Court on the basis that section 18(1) of POCA did not operate retrospectively, and therefore no confiscation order (and hence no restraint order) could lawfully follow in respect of pre-Act offences. The NDPP appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel. The order of the High Court setting aside the provisional restraint order and awarding attorney-and-client costs was upheld.

This case is a leading authority on the non-retrospective application of confiscation provisions under POCA. It affirms the strong presumption against retrospectivity in South African statutory interpretation, particularly where severe consequences akin to punishment may arise. The judgment also reinforces the duty of utmost good faith in ex parte applications, especially in asset restraint and forfeiture proceedings.