Angelina Procopos v National Director of Public Prosecutions

Following the conviction of the appellant’s daughter on extensive fraud and related offences arising from a fraudulent investment scheme, the National Director of Public Prosecutions (NDPP) sought a restraint order under s 26 of the Prevention of Organised Crime Act 121 of 1998 (POCA). Large sums of investors’ money had been deposited into a bank account in the appellant’s name. The NDPP alleged that these deposits constituted ‘affected gifts’ made to the appellant by the convicted defendant. A provisional restraint order was granted, and later confirmed in part by the High Court, restraining the appellant’s interests in two close corporations and her bank account. The appellant denied receiving any benefit, contending that her bank account was merely used as a conduit by her daughter, that she acted on instructions, and that she derived no gifts or benefits from the funds.

The appeal was upheld with costs, except in respect of the appellant’s Absa bank account. The restraint order over the appellant’s interests in the close corporations was set aside and replaced with an order referring the matter to cross-examination under Rule 6(5)(g). The NDPP’s cross-appeal was dismissed with costs.

The case clarifies the evidentiary burden resting on the NDPP when seeking restraint orders against third parties under POCA. It affirms that affected gifts must be proven on a balance of probabilities and limits the scope of s 16(1)’s deeming provision. The judgment is important in safeguarding third parties from asset restraint absent proper proof and in delineating the procedural protections available in POCA restraint proceedings.