Phillips and Others v National Director of Public Prosecutions

The applicants, led by Andrew Lionel Phillips, controlled a group of companies and close corporations operating businesses linked to prostitution and striptease entertainment in Rivonia, Sandton. Following a police raid in 2000, the National Director of Public Prosecutions (NDPP) obtained preservation and later restraint orders under the Prevention of Organised Crime Act 121 of 1998 (POCA) over the applicants’ assets, pending criminal proceedings and possible confiscation. A curator bonis was appointed to administer the restrained assets, resulting in the closure of the businesses and deterioration of properties due to lack of income and unpaid municipal charges. The applicants repeatedly litigated against the curator and ultimately applied to the High Court to rescind the restraint order, arguing that it was impossible for the curator to fulfil his duties and that the order was undermining, rather than preserving, asset value. The High Court rescinded the order relying on its inherent jurisdiction under section 173 of the Constitution. The Supreme Court of Appeal (SCA) overturned that decision, holding that rescission was limited to the statutory grounds in POCA. The applicants then sought leave to appeal to the Constitutional Court.

Leave to appeal was refused, and the decision of the Supreme Court of Appeal reinstating the restraint order was confirmed.

The case is significant for clarifying the limits of the inherent jurisdiction of High Courts under section 173 of the Constitution when operating within a detailed statutory framework. It affirms that restraint orders under POCA are strictly regulated by statute and cannot be rescinded on general equitable or common-law grounds, reinforcing the integrity of South Africa’s asset forfeiture regime.