IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the appeal between: Case No.: CCT 95/10 ALEXANDER GERHARD FALK FALK REAL ESTATE SA (PTY) LTD First Applicant Second Applicant and NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Respondent RESPONDENT S NOTE 1. Names of the parties and case number: See above.
2 2. The nature of the proceedings: 2.1 An application for leave to appeal to this Court against the judgment and order of the Supreme Court of Appeal ( the SCA ) per Cloete JA in case number 689/09 dated 23 September 2010 ( the SCA judgment ), in which the SCA dismissed with costs an appeal against the judgment and order of the Western Cape High Court ( the WCHC ) per Louw J in case number 8420/03 dated 10 July 2009, dismissing with costs an application brought by the Applicants against the Respondent for relief in terms of section 26(10)(b) of the Prevention of Organised Crime Act 121 of 1998 ( the POCA ) read with section 17(b) thereof, alternatively section 26(1)(c) and (d) of the International Cooperation in Criminal Matters Act 75 of 1996 ( the ICCMA ). 2.2 The Applicants seek orders: 2.2.1 setting aside the registration on 13 September 2004 by the Registrar of the WCHC in terms of section 24 of the ICCMA of a foreign restraint order against the First Applicant ( Falk ) issued on
3 25 August 2004 by the Hamburg Regional Court (Landgericht) in Germany; and 2.2.2 setting aside the ancillary interdictory relief granted to the NDPP against Falk and the Second Applicant ( FRSA ) on 16 August 2005 by the WCHC (per Veldhuizen J) in terms of section 26(8) of the POCA read with section 24 of the ICCMA. 3. The issues that will be argued: 3.1 Whether Chapter 4 of the ICCMA or Chapter 5 of the POCA governs the relief sought by the Applicants. 3.2 Whether the ground for setting aside the registration of the foreign restraint order in section 26(1)(d) of the ICCMA, has been established. 3.3 The proper interpretation of sections 17(b), 24A and 26(10)(b) of the POCA. 3.4 Whether section 24A of the POCA and the appeals to the German Federal Court (Bundesgerichtshof) by Falk and the Hamburg prosecutors against the decisions of the trial court in the criminal proceedings against Falk in Germany, and the
4 outcome of those appeals, preclude the granting of the relief sought by the Applicants. 4. The portions of the record that are necessary for the determination of the appeal: 4.1 The whole of the record, save for annexures JVDH1A to JVDH4 to the affidavit of J L U van der Hoven dated 22 September 2008 (record vol. 3 pp. 222 to 256), is necessary. 4.2 There are certified translations of all the documents in the record which are in German. 5. An estimate of the duration of the argument: Half a day. 6. A summary of the argument: It would not be in the interests of justice for leave to appeal to this Court to be granted because the Applicants do not have reasonable prospects of success in the intended appeal. The NDPP s main submissions in this regard are the following: 6.1 the relief sought by the Applicants is governed by Chapter 4 of the ICCMA not Chapter 5 of the POCA and the ground for setting aside the registration of the foreign restraint order
5 in section 26 of the ICCMA on which the Applicants relied in the SCA has not been established; 6.2 alternatively even if such relief is governed by Chapter 5 of the POCA then the foreign restraint order and the ancillary interdicts issued by the WCHC remain in force because of section 24A of the POCA and the appeals in the German Federal Court by Falk and the Hamburg prosecutors against the decisions of the trial court in the criminal proceedings against Falk in Germany, as well as the outcome of those appeals. 7. The authorities to which particular reference will be made during the course of argument: None, save for the relevant provisions of the ICCMA and the POCA. A M BREITENBACH SC K S SALLER Counsel for the NDPP Chambers Cape Town 31 January 2010