National Director of Public Prosecutions v Naidoo and Others

Mr Rajan Naidoo was an accused in extensive criminal proceedings involving 119 charges relating to the illegal dealing in unwrought precious metals. The NDPP obtained a restraint order under s 26 of the Prevention of Organised Crime Act 121 of 1998 (POCA), initially against Mr Naidoo and later, by agreement, extended to property owned by his ex‑wife, Dolly Naidoo, and two companies she controlled, Two Line Trading 87 (Pty) Ltd and Yamani Properties 1015 (Pty) Ltd, on the basis that they had allegedly received affected gifts. While the criminal trial was pending, Mr Naidoo applied to the North Gauteng High Court for an order directing the curator bonis to release funds from the restrained property of the companies to pay his legal expenses. The High Court granted the order. The NDPP appealed, contending that s 26(6) of POCA does not permit payment of a defendant’s legal expenses from restrained property held by persons or entities other than the defendant.

Leave to appeal was granted. The appeal was upheld with costs, including the costs of two counsel. The order of the North Gauteng High Court was set aside and substituted with an order dismissing Mr Naidoo’s application with costs.

The case clarifies the limits of judicial discretion under s 26(6) of POCA and confirms that a defendant may not fund legal expenses from restrained assets held by third parties or entities. It is significant for asset‑forfeiture jurisprudence and reinforces the protective purpose of POCA in preserving property for possible confiscation. The judgment also underscores the constitutional and institutional importance of timeous delivery of reasons by courts and recognises constructive refusal of leave to appeal as a ground for appellate intervention.