The applicant, Mr Trent Gore Fraser, was a businessman charged with serious offences including racketeering and money laundering under the Prevention of Organised Crime Act 121 of 1998 (POCA), as well as drug-related offences. His assets, including his membership interest in a close corporation holding immovable property, were placed under a provisional restraint order obtained by the National Director of Public Prosecutions (NDPP) in terms of section 26 of POCA. While awaiting trial, Mr Fraser applied under section 26(6) of POCA for provision to be made from the restrained property for his reasonable legal expenses. ABSA Bank Limited, a concurrent judgment creditor of Mr Fraser with an unsecured debt arising from a default judgment, sought to intervene in order to oppose the application, arguing that payment of legal expenses would deplete assets available to satisfy its claim. The High Court refused ABSA leave to intervene and granted provision for legal expenses. The Supreme Court of Appeal overturned that decision, allowing ABSA to intervene and holding that Mr Fraser could not use restrained property to pay his legal expenses. Mr Fraser then appealed to the Constitutional Court, alleging that the Supreme Court of Appeal’s interpretation of POCA infringed his constitutional right to a fair trial and property rights.
Leave to appeal was granted. The appeal was upheld. The order of the Supreme Court of Appeal was set aside and replaced with an order dismissing ABSA Bank Limited’s application to intervene and confirming the High Court’s order granting provision for Mr Fraser’s reasonable legal expenses in terms of section 26(6) of POCA.
This case is a leading Constitutional Court authority on the interpretation of section 26(6) of POCA and the protection of fair trial rights in asset restraint proceedings. It clarifies that, at the pre‑conviction restraint stage, an accused’s right to reasonable legal expenses takes precedence over the claims of concurrent creditors. The judgment affirms the importance of the right to choose legal representation and delineates the proper stage at which creditors’ interests may be considered under POCA.