National Director of Public Prosecutions v Johannes Erasmus van Staden and Others

The NDPP obtained an ex parte provisional restraint order under s 26(1) of the Prevention of Organised Crime Act 121 of 1998 to restrain Johannes van Staden, his family members and related entities from dealing with property allegedly representing the proceeds of VAT fraud against SARS. The fraud involved the submission of fraudulent VAT returns by companies controlled by Van Staden, resulting in large VAT refunds. The provisional order was granted pending criminal prosecution and possible confiscation proceedings. When the NDPP sought confirmation of the restraint order, the Western Cape High Court discharged the order against Van Staden, holding that the NDPP had not acted with the required utmost good faith in the ex parte application, particularly regarding reliance on oral information from an employee, De Vries, and the alleged failure to place De Vries’s sworn statement before the court timeously.

The appeal was upheld with costs, including the costs of senior counsel. The High Court order discharging the provisional restraint order was set aside and replaced with an order confirming the provisional restraint order and directing the respondent to pay the costs of the application.

The case clarifies the scope of the NDPP’s duty of utmost good faith in ex parte restraint order applications under POCA and confirms that alleged non-disclosure or procedural complaints at the confirmation stage do not, without prejudice, justify refusing substantive relief. It reaffirms the low threshold for granting and confirming restraint orders and strengthens the effectiveness of POCA in preserving assets pending criminal prosecution.