Housing Development Agency Act, 2008
R 385
Special Investigating Units And Special Tribunals Act, 1996 (Act No. 74 of 1996)RulesSpecial Tribunals Rules23. Restraint Orders |
| (1) | Any interested person or party including the SIU may, by way of an ex parte application, apply to a Tribunal 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 specified in the restraint order held, either within or outside the territory of the Republic of South Africa, and by the person against whom the restraint order is being made; |
| (b) | in respect of all realisable property held by such person, whether 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 |
| (3) | The Tribunal may make a provisional restraint 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 restraint order should not be made final. |
| (4) | 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. |
| (5) | The respondent or defendant, as the case may be, may anticipate the return day for the provisional restraint order if on 24-hour notice to the applicant. |
| (6) | A restraint order shall provide for notice to be given to persons affected by the order. |
| (7) | Without derogating from the generality of the powers conferred by sub-Rule (1), a restraint order may make such provision as the Tribunal may think appropriate— |
| (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 section 26 of the PRECCA or any criminal proceedings to which such proceedings may relate, if the Tribunal 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. |
| (8) | The Tribunal 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 Tribunal may consider necessary or expedient with a view to achieving the objects of the restraint order. |
| (9) | The Tribunal 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 it considers appropriate for the proper, fair and effective execution of the order. |
| (10) | Property seized under this rule shall be dealt with in accordance with the directions of the Tribunal that granted·the restraint order. |
| (11) | The Tribunal which granted a restraint order |
| (a) | may on application by a person affected thereby vary or rescind the restraint 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 |
| (d) | shall rescind the restraint order when the proceedings against the defendant concerned are concluded. |
| (12) | When the Tribunal orders a rescission of an order authorising the seizure of property in terms of sub-rule (11) (a), the Tribunal may make such other order as it considers appropriate for the proper, fair and effective execution of the restraint order concerned |
| (13) | The provisions of Chapter 5, Part 3 of PRECCA apply mutatis mutandis to proceedings under this Rule |
