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IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the application of:

and"

[3]      in this application the Applicants apply for orders setting aside:
'); and

2004,

[5]      The relevant part of the order made by the Regional Court Hamburg on 25 August 2004 records that it was ordered in the criminal proceeding against Falk 'due to the suspicion of very serious fraud' as follows: 
Due to the claim of

To the forfeiture of compensation for lost values and - due to the claims of persons who suffered damages (so-called 'recovery assistance'} - to the amount of altogether at least EUR 31,645,413, 34 against the accused

The attachment of the property of the accused to an amount of EUR 31,645,413, 34 is hereby ordered in favour of The Free and Hanseactic City of Hamburg.

The following orders are made:
1. Orders:

Mcintosh)

facts,

Standard Bank without FRSA'S permission or instructions, who then gave the

€

2.  On 5 June 2003, pursuant to an application by the Hamburg Prosecutors made in
terms of the German Rules of Criminal Procedure, the German Criminal Code

an order in the following terms:

[11] On 26 June 2003 the Hamburg Public Prosecutor's Office directed a request for mutual legal assistance to the South African authorities. The request was based on the first Hamburg restraint order against Faik and on a restraint order made by the Hamburg Local Court against Folk Holding. (The NDDP does not rely on the latter order because Faik Holding does not have any assets in South Africa,) The requested acts of legal assistance are described as follows:

6214/04 postponing the matter to 16 September 2004 and recording that Faik and FRSA had given Energis and Osborne an undertaking in the following terms:

[22] The NDPP has filed a number of affidavits in this matter deposed to by Dr Henry Winter a public prosecutor who is the head of the Financial Investigations Unit of the public Prosecutions Department in Hamburg, Germany. Dr Winter deposed to various events relating to the prosecution of Faik in Germany as well as the decisions given by various courts in Germany. Dr Winter also testified to and explained aspects of German Law. During the course of argument Mr Breytenbach on behalf of the NDPP placed Dr Winter's qualifications before the court. Mr van Riet, on behalf of the applicants indicated that he accepted Dr Winter's expertise in these proceedings. It is clear that he is duly qualified to testified in these proceedings, having received a doctorate in Law at Hamburg University in 1984 and having worked for 22 years with the German criminal Law and proceaure. He has held his present position as head of the Financial Investigations Unit since 2003.

[23] The following key events occurred in Germany after the order was made by Veldhuizen, J on 16 August 2005.

pending the final determination of the civil proceedings instituted by first and/or second applicants against first respondent and others in Germany.'

deliver supplementary papers at any time before the delivery of judgment in order to

apprise the Court and the Applicants of any further relevant events in Germany,

[38]     Pursuant thereto, on 29 August 2008 and 15 September 2008, respectively, the
NDPP delivered a supplementary affidavits by Dr Winter and the NDPP's attorney dealing:

2.	to place before the Court the (German) originals and certified translations into English of the orders made and reasons given by the Hamburg High Court on 7 August 2008.

[46] The NDPP then delivered an application to strike out that section of Mr Van der Hoven's replying affidavit and the affidavit by Mr Louw on the grounds that they contain matter which should have been in the founding papers, that part of that section of Mr Van der Hoven's replying affidavit and the whole of the affidavit by Mr Louw constitute an impermissible and belated attempt to secure the release of money for FRSA's legal expenses and business expenses and that the NDPP has been prejudiced by the raising of this new matter in this fashion and at this late stage of the proceedings.

2. That the shares of the first respondent in the second respondent held in trust by the Cape Town Office of Bowman & Gilfillian (Ret Tim Mcintosh) be returned to the first applicant;

The Replying affidavit of van der Hooven

22.1    Setting aside the registration of the Hamburg restraint order made by this court on 13 September 2004
22.2. Setting aside the restraint order made Py this court on 16 August 2005;
22.3. Ordering that the Respondent pay the costs of this application.

[48] The order sought by Faik and FRSA is in the first place, the setting aside of the interdictory relief granted an 16 August 2005 by this Court to the NDPP, The principal bais on which the relief is sought is the contention that the criminal proceedings against Faik in Germany were concluded by Hamburg Regional Court's judgment of 9 May 2008 and that consequently Faik and FRSA are entitled to an order in terms of section 26(10) (b) of the POCA, read with section 17(b) of the POCA, rescinding the orders granted on 16 August 2005.

[49] In broad outline, the NDPP's contention is that this is a matter which essentially concerns the question whether a foreign restraint order that was registered in this court should be set aside together with the ancillary orders made pursuant to the registering of the foreign restraint order. The NDPP consequently contends that the matter must be decided under the provisions of Chapter 4 of the ICCMA. Mr van Riet, on behalf of Faik and FRSA, contended that fne matter should be decided under the provisions of Chapter 5 of the POCA.

and a

[52] Section 24 of the ICCMA deals with the registration in South Africa of foreign restraint orders. It provides:

'{1} When the Director-Genera! receives a request for assistance in enforcing a foreign restraint order in the Republic, he or she may lodge with the registrar of a division of the Supreme Court a certified copy of such order if he or she is satisfied that the order is not subject to any review or appeal.

be served on such person in the prescribed manner.
(b) Where the said person is not present in the Republic, he or she shall in the prescribed manner be informed of the registration of the foreign restraint order.

can do no better than to adopt and set out Mr Breytenbach's exposition in what follows.

foreign restraint order and provides:

(c)	that the order is subject to review or appeal;

[58] Sections 20 to 22 of the ICCMA are similar to sections 24 to 26 and are concerned with the registration, effect and setting aside of a foreign confiscation order. They differ in that the approval of the Minister of Justice is a prerequisite for the registration of a foreign confiscation order and, once registered, a foreign confiscation order has the effect of a civil judgment of the court at which it has been registered in favour of the Republic as represented by the Minister. The DG must pay over to the requesting State any amount recovered in terms of a foreign confiscation order, less expenses incurred in connection with the execution of the order.

[59]     Sections 17 and 26 of the POCA form part of Chapter 5 of that act. Section

(a}...

[62] Mr Breytenbach submitted that even if the proceedings may in terms of section 17(b) be held to have been concluded, the provisions of section 26(10)(b) of the POCA

acceptable. Under section 26(10) (b) of the POCA, the court has no discretion and shall rescind the order if the proceeding against the defendant has come to an end.

[64]    Although I find the reasoning of Mr Breytenbach persuasive, if is, however, not necessary, in my view to decide these issues because even if the provisions of section 26(10) (b) of the POCA are applicable to the setting aside of the registration of a foreign restraint order and ancillary orders, the position would then be governed by the provisions of section 24A of the POCA which provides, in my view, a complete answer to the applicants' case based on chapter 5 of POCA. The section provides as follows:
24A      Order to remain in force pending appeal
A restraint order and an order authorising the seizure of the property concerned or other ancillary order which is in force at the time of any decision by the court in relation to the making of a confiscation order, shall remain in force pending the outcome of any appeal against the decision concerned.

18 Confiscation orders

(1) Whenever a defendant is convicted of an offence the court convicting the defendant may, on the application of the public prosecutor, enquire info any benefit which the defendant may have derived from -
a)	that offence;
b)	
c)	

[77] I conclude therefore that the registration of the second Hamburg restraint order should not be set aside in terms of section 26(1 )of the ICCMA.

[79] The NDPP has also brought an application to strike out certain paragraphs in the replying affidavit of Mr van der Hooven, the whole of the affidavit of Mr Louw on the basis that if constitutes new matter and in addition, in the case of van der Hooven affidavit, also an impermissible and belated attempt to secure the release of money for FARSA's legal and business expenses. There is also an objection to parts of an affidavit deposed to be Falk wherein he expresses opinions in regard to aspects of German law. In view of the conclusion to which i have come in this matter I am of the view that the NDPP has not been prejudiced by the matter and it is not necessary fo decide the application to strike out. Very little time was spent on it in any event and the cost must follow the cost in the main application with which this judgment is concerned.
[80]     I consequently make the following order: