Proceeds of Crime Act, 1996 (Act No. 76 of 1996)Chapter 3 : Restraint orders16. Restraint orders |
| (1) | The attorney-general concerned, or any public prosecutor authorised thereto in writing by him or her, or the Director of the Office for Serious Economic Offences or any person authorised thereto in writing by him or her may by way of an ex parte application apply to a competent superior court for an order prohibiting any person, subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with any property to which the order relates. |
| (2) | A restraint order may be made— |
| (a) | in respect of such realisable property as may be specified in the restraint order and which is held by the person against whom the restraint order is being made; |
| (b) | in respect of all realisable property held by such person, whether it is specified in the restraint order or not; |
| (c) | in respect of all property which, if it is transferred to such person after the making of the restraint order, would be realisable property; and |
(3)
| (a) | A court to which an application is made in terms of subsection (1) may make a provisional restraint order having immediate effect and may simultaneously grant a rule nisi calling upon the defendant upon a day mentioned in the rule to appear and to show cause why the restraint order should not be made final. |
| (b) | If the defendant has been absent during a period of 21 days from his or her usual place of residence and of his or her business (if any) within the Republic, the court may direct that it shall be sufficient service of that rule if a copy thereof is affixed to or near the outer door of the buildings where the court sits and published in the Gazette, or may direct some other mode of service. |
| (c) | Upon the application for the defendant, the court may anticipate the return day for the purpose of discharging the provisional restraint order if 24 hours' notice of such application has been given to the applicant contemplated in subsection (1). |
(4)
| (a) | A restraint order shall provide for notice to be given to persons affected by the order. |
| (b) | Any person affected by a restraint order may at any time apply for the variation or rescission of the order. |
| (5) | If it deems it necessary in the interests of justice, the superior court which made a restraint order— |
| (a) | may at any time vary or rescind the restraint order; or |
| (b) | shall rescind the restraint order if the proceedings against the defendant in question are concluded. |
| (6) | Without derogating from the generality of the powers conferred by subsection (1), a restraint order may make such provision as the superior court may think fit— |
| (a) | for the reasonable living expenses of a person against whom the restraint order is being made and his or her family or household; and |
| (b) | for the reasonable legal expenses of such person in connection with any proceedings instituted against him or her in terms of this Act. |
| (7) | A superior court making a restraint order may also make such further order in respect of the discovery of any facts including facts relating to any property over which the defendant may have effective control and the location of such property as the court may consider necessary or expedient with a view to achieving the objects of the restraint order. |