In a judgment today the Supreme Court of Appeal (Theron AJA, with Howie P, Zulman, Cameron and Mthiyane JJA concurring), has dismissed an appeal against an ex parte provisional restraint order granted against the appellants in terms of the Prevention of Organised Crime Act, 121 of 1998 (POCA).

The restraint order related to realisable property and included the appellants’ residential home (the immovable property). In terms of the restraint order the first respondent was appointed curator bonis of the appellants’ assets subject to the restraint order. He was authorised to take possession, control, care of and administer the property specified in the order. The appellants were ordered to surrender the specified property, including the immovable property, to the curator bonis.

On 21 September 2004, and immediately upon being served with the restraint order, the first appellant surrendered custody and control of all the assets, including the immovable property, to the curator bonis. The curator bonis acknowledged the appellants’ right to occupy the immovable property but refused to allow them to do so until agreement had been reached on various issues relating to the property.

On 6 October 2004, the appellants launched an urgent application in the court of first instance, seeking, inter alia, a declarator that they were entitled to occupy the immovable property. Claasen J held that the attempts by the curator bonis to place conditions on the appellants’ re-occupation of the property went beyond the statutory duty imposed on him to take control of the assets and secure their preservation. The full court of the Witwatersrand Local Division, (per Joffe J (Malan and Snyders JJ concurring)), upheld an appeal, concluding that the word ‘surrender’, as used in the restraint order, encompassed the transfer of possession of the immovable property to the curator bonis.

The SCA held that the first appellant had voluntarily surrendered the residential home to the curator bonis. In consequence of such surrender, possession of the property passed to the curator bonis.

The SCA held that the conditions which the curator bonis sought to impose do not appear unreasonable. The conditions were intended to serve a legitimate objective, namely, the preservation of the property. This was a pivotal responsibility of the curator bonis and the very purpose for which the restraint order had been granted. In the circumstances, the conduct of the curator bonis in seeking to impose conditions on the appellants’ re-occupation of the immovable property was not unreasonable. The court also found that a challenge to the content of the conditions at this stage, was premature.