1 CONSTITUTIONAL COURT OF SOUTH AFRICA
Alexander Gerhard Falk and Another v National Director of Public Prosecutions
Case No: CCT 95/10
Date of Hearing: 8 March 2011
MEDIA SUMMARY
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 8 March 2011 the Constitutional Court will hear an application for leave to appeal against a decision of the Supreme Court of Appeal brought by Mr Falk, a German citizen with business interests in South Africa as well as a company in which Mr Falk owns all the shares.
Mr Falk was charged in Germany in 2003 for serious economic offences which were said to arise from the manipulation of share prices of a German company. The German trial Court issued a restraint order for the attachment of Mr Falk’s property so that a forfeiture order could, if necessary, be made by the Court at the end of the trial. This foreign restraint order was later registered against the applicants’ property in South Africa by the Registrar of the Western Cape High Court acting under the International Co-operation and Criminal Matters Act (the Co-operation Act). According to this law, the foreign restraint order, when registered, has the effect of a restraint order made in South Africa.
In 2006 and pursuant to the registration, the Western Cape High Court interdicted the applicants from dealing with €5,22 million held in a South African bank account and with all of their other assets except in the ordinary course of business of the company. This was done under the provisions of the Prevention of Organised Crime Act (the Organised Crime Act).
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The applicants applied to set aside both the registration of the foreign restraint order against their property as well as the interdicts that had been granted against them, mainly on the basis that no forfeiture order had been made by the German Court in which Mr Falk’s trial had been concluded. The prosecution in Germany had however requested a forfeiture order in an appeal against the decision of the German Trial Court. Both the High Court and the Supreme Court of Appeal dismissed the application.
The Supreme Court of Appeal held that the provisions of the Organised Crime Act were not applicable to the case, that the provisions of the Co-operation Act were. It also held that, even if the provisions of the former legislation applied, they do not allow the registration or the interdicts to be set aside while an appeal against the decision of a German Trial Court was still pending.
In the Constitutional Court Mr Falk and the company contend that their right not to be arbitrarily deprived of property, enshrined in section 25 of the Constitution, has been infringed by the order of the Supreme Court of Appeal. They say that the registration of the order by the Registrar of the Western Cape High Court was incompetent and that it was not competent for the High Court to have granted the interdicts pursuant to the provisions of the Organised Crime Act. They also argue that the registration of the foreign restraint order and the interdicts should be set aside because the case against Mr Falk has been concluded in Germany. According to the applicants, the fact that there is a pending appeal makes no difference.
Conversely, the NDPP agrees with the findings of the Supreme Court of Appeal.
