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Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998)

Chapter 5 : Proceeds of Unlawful Activities

Part 3 : Restraint Orders

26. Restraint orders


(1) The National Director may by way of an ex parte application apply to a competent High 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.


(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 from 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 application by 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).


(a) A restraint order shall provide for notice to be given to persons affected by the order.
(b) [Section 26(4)(b) deleted by section 4(a) of Act No. 38 of 1999].


(5) [Section 26(5) deleted by section 4(b) of Act No. 38 of 1999].


(6) Without derogating from the generality of the powers conferred by subsection (1), a restraint order may make such provision as the High 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 Chapter or any criminal proceedings to which such proceedings may relate,

if the court is satisfied that the person whose expenses must be provided for has disclosed under oath all his or her interests in property subject to a restraint order and that the person cannot meet the expenses concerned out of his or her unrestrained property.


(7) A High 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.


(8) A High Court making a restraint order shall at the same time make an order authorising the seizure of all movable property concerned by a police official, and any other ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order.

[Section 26(8) amended by section 4(c) of Act No. 38 of 1999]


(9) Property seized under subsection (8) shall be dealt with in accordance with the directions of the High Court which made the relevant restraint order.

[Section 26(9) amended by section 20(b) of Act No. 24 of 1999]


(10) A High Court which made a restraint order—
(a) may on application by a person affected by that order vary or rescind the restraint order or any 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 will suffer as a result of the order outweighs the risk that the property concerned may be destroyed, lost, damaged, concealed or transferred; and
(b) shall rescind the restraint order when the proceedings against the defendant concerned are concluded.

[Section 26(10) inserted by section 4(d) of Act No. 38 of 1999]


(11) When a court orders the rescission of any order authorising the seizure of property in terms of subsection (10)(a) the court shall make such other order as it considers appropriate for the proper, fair and effective execution of the restraint order concerned.

[Section 26(11) inserted by section 4(d) of Act No. 38 of 1999]