National Director of Public Prosecutions v Kyriacou

The respondent was convicted in the Orange Free State High Court on 102 counts of receiving stolen property knowing it to be stolen, involving goods worth approximately R4.5 million, and sentenced to 15 years’ imprisonment. The trial court ordered the return of the stolen property to its rightful owners under s 34(1)(a) of the Criminal Procedure Act and commenced an enquiry under s 18(1) of the Prevention of Organised Crime Act 121 of 1998 (POCA) to determine whether a confiscation order should be made. Before that enquiry was finalised, the National Director of Public Prosecutions obtained an ex parte provisional restraint order under s 26 of POCA against the respondent’s property, including assets held through close corporations and trusts. On the return day, the High Court set aside the provisional restraint order. The NDPP appealed to the Supreme Court of Appeal.

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

The case authoritatively clarifies the threshold for granting restraint orders under POCA, confirming that the NDPP need only establish reasonable grounds for believing that a confiscation order may be made. It rejects the application of ordinary motion proceedings standards to restraint applications and affirms the wide reach of POCA, including reliance on statutory presumptions and related criminal activity. The decision strengthens the effectiveness of asset preservation measures in combating organised crime in South Africa.