Special Investigating Units And Special Tribunals Act, 1996 (Act No. 74 of 1996)RulesSpecial Tribunal Rules23. Preservation Orders |
| (1) | The SIU may, by way of an ex parte application and in the form of a rule nisi, apply to the Tribunal in chambers or open hearing of the Tribunal, for a preservation order, pending the final adjudication of the main application or action proceedings, including appeals arising therefrom; prohibiting any person, subject to such conditions and exceptions as may be specified in the order, from disposing of, interfering with or dealing in any other manner with any property to which the order relates. |
| (2) | An application for a preservation order before the Tribunal is limited only in instances where there is a need for the preservation of evidence of the proceeds of a crime or unlawful transactions, contracts or conduct arising from any of the grounds listed in section 2(2) of the Act; |
| (3) | The preservation order shall be applied for only after or simultaneous with the institution of the main application or action proceedings in the Tribunal, or where there is an application or action proceedings pending in the High Court. |
| (4) | The Tribunal may grant an application for a preservation order where it is proved, on a balance of probabilities that: |
| (a) | A prima facie case is made out in the main application or action proceedings pending; |
| (b) | The relief sought must be the only practicable mean of protecting the evidence; |
| (c) | The evidence to be attached must be material to the applicant’s main application or action proceedings; |
| (d) | Reasons are provided for the belief that the evidence will be removed, disposed of or destroyed; |
| (e) | The order should go no further than is strictly necessary for the preservation of the evidence sought to be preserved. |
| (5) | A preservation order may be made: |
| (a) | in respect of such property, movable and/or immovable as specified in the preservation order held, either within or outside the territory of the Republic of South Africa, and by the person against whom the preservation order is being made; |
| (b) | in respect of all realisable property held by the respondent or defendant, or in the possession of any other person regardless of title, whether specified in the preservation order or not; |
| (c) | in respect of all property which, if it is transferred to such person after the making of the preservation order, would be realisable property. |
| (6) | The Tribunal may make a provisional preservation order having immediate effect and may simultaneously grant a rule nisi calling upon the defendant/respondent on a day mentioned in the rule to appear and to show cause why the preservation order should not be made final. |
| (7) | Where the respondent or defendant, as the case may be, has been absent during a period of 21 days from his or her usual place of residence and from his or her business, if any, within the Republic, the Tribunal may direct that the rule nisi be served by affixing it to or near the outer door of the buildings where the Tribunal sits and published in the Gazette, or may direct some other mode of service. |
| (8) | The respondent or defendant, as the case may be, may anticipate the return day for the provisional preservation order on 24-hour notice to the applicant. |
| (9) | A preservation order shall provide for notice to be delivered to persons affected by the order. |
| (10) | Without derogating from the generality of the powers conferred by sub-rule (1), a preservation order may make such provision as the Tribunal may think appropriate— |
| (a) | for the reasonable living expenses of a person against whom the preservation order is being made and his or her family or household; and/or |
| (b) | for the reasonable legal expenses of such person if the Tribunal is satisfied that the person whose expenses must be provided for has disclosed under oath all his interests in property subject to a preservation order and that the person cannot meet the expenses concerned out of his preserved property. |
| (11) | The Tribunal making a preservation 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/respondent may have effective control and the location of such property as the Tribunal may consider necessary or expedient with a view to achieving the objects of the preservation order. |
| (12) | The Tribunal making a preservation order may at the same time make an order authorising the seizure of all movable property concerned by an SIU investigator, and any other ancillary orders that it considers appropriate for the proper, fair and effective execution of the order. |
| (13) | Property seized under this rule shall be dealt with in accordance with the directions of the Tribunal that granted the preservation order. |
| (14) | The Tribunal which granted a preservation order |
| (a) | may on application by a person affected thereby vary or rescind the preservation order or an order authorising the seizure of the property concerned or other ancillary order if it is satisfied |
| (i) | that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant; and |
| (ii) | that the hardship that the applicant stands potentially to suffer as a result of the order outweighs the risk that the property concerned may be destroyed, lost, damaged, concealed or transferred; and |
| (b) | may, on application, rescind the preservation order when the proceedings against the defendant/respondent concerned are concluded. |
| (15) | When the Tribunal orders a rescission of an order authorising the seizure of property in terms of sub-rule (14) (a), the Tribunal may make such other order as it considers appropriate in the circumstances. |