Gillingham v National Director of Public Prosecutions and Another (131690/2024) [2025] ZAGPPHC 1386 (15 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1386 | Noteup | LawCite sino index ## Gillingham v National Director of Public Prosecutions and Another (131690/2024) [2025] ZAGPPHC 1386 (15 December 2025) Gillingham v National Director of Public Prosecutions and Another (131690/2024) [2025] ZAGPPHC 1386 (15 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1386.html sino date 15 December 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) CASE NO: 131690/2024 (1) REPORTABLE:  NO. (2) OF INTEREST TO OTHER JUDGES:  NO (3) REVISED. DATE: 15 DECEMBER 2025 SIGNATURE In the matter between: PATRICK O’CONNELL GILLINGHAM Applicant and THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS First Respondent JOHAN FRANCOIS ENGELBRECHT N.O. Second Respondent Summary: Prevention of Organised Crime Act 121 of 1998 (POCA) – application for provision of living and legal expenses from property subject to a restraint order in terms of Section 26 of POCA – limited provision ordered. ORDER 1. The second respondent is ordered to pay the following service providers of the applicant before or on 31 December 2025 and thereafter before or on the last day of each successive month: 1.1 R7 481.oo to Discovery Health Medical Scheme, member number 3[...], First Bank Corporate Account Service – Johannesburg, account number 0[...]. 1.2 R2 200.00 to Midstream Estate Levy, ABSA Bank, account number 4[...], reference: 0[...]. 1.3 R1 252.00 to City of Tshwane re retirement village rates and taxes, reference: 5[...]. 2. Ordering the second respondent to pay the following service providers within 3 (three) days of receipt of the relevant statements from the applicant. 2.1 Ekurhuleni Municipality, rates and taxes and utilities, reference: 1[...]; 2.2 Midstream Electrical Suppliers (Pty) Ltd (“MES”), ABSA Bank, account number 4[...], reference: 0[...]; 2.3 Vodacom (Pty) Ltd, reference: K[...]. 3. Ordering the second respondent to pay an amount of R4 530.00 to the applicant into his appointed bank account, to wit, Sharon Oosthuizen’s Capital Bank Savings Account, number 2[...], on or before the 1 st of every month. 4. Ordering the second respondent to pay an amount of R15 000.00 to the applicant into his appointed bank account to wit, Sharon Oosthuizen’s Capital Bank Savings Account, number 2[...], within 30 days from date of this order, in lieu of legal costs of this application. JUDGMENT The matter was heard in open court and the judgment was prepared and authored by the judge whose name is reflected herein and is handed down electronically by circulation to the parties’ legal representatives by email and by uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be 15 December 2025 . DAVIS, J Introduction [1] This is an application for the release of funds from a restraint order imposed by this court on the property of the applicant in terms of the provisions of section 26 of the Prevention of Organised Crime Act [1] (POCA) in order to pay for reasonable living expenses and legal costs. The restraint order [2] Pursuant to an application by the National Director of Public Prosecutions (the NDPP) in the main application [2] , Ledwaba (then DJP) granted a restraint order in terms of sections 25 and 26 of POCA on 25 July 2024. [3] The order was served and executed on 6 August 2024 and since then the control of the applicant’s property vested in the hands of a curator bonis , who featured as the second respondent in this application. [4] A further consequence of the restraint order, is that the applicant had become obliged to make full disclosure of all his assets to the curator.  The applicant did so by way of a sworn affidavit and by completing a 20 page questionnaire in a prescribed format on 20 August 2024.  The affidavit included copies of source documents relating to the assets mentioned therein. [5] The curator bonis has prepared an interim report, describing the execution of the order and the property of which he has taken control of.  This included various bank accounts and their balances. The legal position regarding living expenses and legal fees [6] The applicant is one of the accused in a criminal case [3] pending in this court, set to proceed for a full court term in 2026.  He is out on bail of R20 000.00. [7] The position of an accused in the position of the applicant is that although he is still presumed innocent until proven guilty, he has in the meantime pending finalization of his criminal matter and a possible forfeiture order, been divested of control over and access to his bank accounts from which he would otherwise have been able to pay for his living expenses and legal costs. [8] In this regard section 26(6) of POCA provides as follows: “ (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 his family or household; and (b) …………… if the court is satisfied that the person whose expenses must be provided for has disclosed under oath all his or his interests in property subject to a restraint order and that the person cannot meet the expenses concerned out of his or his unrestrained property ” . [9] In Naidoo v NDPP [4] Cameron J penned the unanimous judgment of the Constitutional Court.  He found that “… section 26(6) make(s) allowance for reasonable living and legal expenses only in limited terms.  First, the access is granted only for the legal expenses of a person against whom the restraint order was made.  Second, it is conditional on full disclosure.  Third, the person must not be able to meet the expenses concerned out of his or her unrestrained property ” [5] . [10] In NDPP v Elran [6] , Cameron J, again writing for the Constitutional Court in the majority decision, found that “ the point of requiring disclosure of liabilities like loans is to enable a court properly to assess whether an applicant has adequately disclosed his property not subject to the preservation order ”.  Although this finding was made in respect of section 44 of POCA it was found (at par [78]) that the provision is similar in nature to section 26(6). [11] The jurisdictional facts which must exist before the applicant would be entitled to the release of funds are therefore: 1. that he cannot meet his expenses out of property that is not the subject of restraint orders. 2. that he must make a full disclosure (including disclosure of loans) and 3. in this regard, must submit a sworn affidavit of all his assets and liabilities. The applicant’s case [12] The restraint order granted against the applicant, related to “all” of his property.  It was therefore not an order directed against certain assets or a portion of his estate. [13] The applicant made a disclosure of his assets to the curator after the execution of the order on 6 August 2024.  In his affidavit in support of the present application, he expressly stated (in par 16 thereof) that he thereby makes a similar disclosure to the court. [14] The applicant then went on to disclose two immovable properties.  The first was the residence of his and his life partner, Ms Oosthuizen.  The second property was a unit in a retirement village where his stepmother has been living on her own since the passing of the applicant’s father. [15] The applicant further listed movable property, such as a watch, carpets, furniture and clothing.  He disclosed two fixed deposit accounts and an annuity as “investments”.  He furnished particulars of a number of bank accounts, supported by bank statements. [16] An amount of R90 967.87 had previously been held by the applicant’s attorney in trust as cover for legal expenses in the criminal matter.  In terms of the restraint order, this has been paid over to the curator bonis . [17] The applicant’s only sources of income, are interest earned on his fixed deposits in the amounts of R24 150.45 and R2 752.10, which accumulate to the accounts and to which he has no access.  He receives R477.55 per month from the annuity policy which has otherwise been paid out. [18] The applicant’s expenses were in the past paid by way of debit orders from his African Bank My World account.  Since this account has been “frozen”, the debit orders are no longer met.  The account earns interest of between R157.00 and R167.00 per month. [19] The applicant’s living expenses which he claims he incurs per month are: - Discovery Health Medical Scheme                                  R7 481.00 - Chronic Medication contribution                                      R     80.00 - *Ekurhuleni Municipality rates, taxes utilities                     R5 332.81 - *Midstream Electrical Supplies                                        R2 716.97 - Midstream Estate levy                                                    R2 200.00 - City of Tshwane Retirement Village rates & taxes            R1 251.00 - *Vodacom contract                                                         R1 016.00 - Multichoice                                                                     R1 088.00 - Toiletries                                                                        R   500.00 - Domestic worker (and transport)                                     R3 700.00 - Dog food                                                                        R   250.00 Total          R25 365.78 (the items marked * are variable per month) [20] The applicant makes the point that the total of these expenses are less than the total earned on the fixed deposits under the control of the curator bonis . [21] As already mentioned, the order was executed 6 August 2024.  This caused the applicant to enter into a written loan agreement with Ms Oosthuizen in terms of which she had loaned and advanced to him R40 455.75 in order for him to pay his living expenses.  The applicant provided a detailed breakdown of how this amount was compiled by way of payments of the monthly expenses from 2 September 2024 until 15 October 2024. [22] In addition, Ms Oosthuizen made payments of R10 000.00 on 30 August 2024, R10 000.00 on 2 September 2024, R5 000.00 on 2 September 2024, R10 000.00 on 17 September 2024 and R10 000.00 on 1 October 2024 to the applicant. [23] When Ms Oosthuizen’s funds ran out, the applicant launched a similar application to the present one, but this was done under the case number of the main application.  It was brought on an urgent basis.  When it was struck off the roll on 29 October 2024 due to a finding of a lack of urgency, it was withdrawn and replaced by the present application, launched on 14 November 2024. [24] In the meantime, the applicant has incurred penalties due to the non-payment of levies on his residential property and his ex-wife’s medical benefits (for which he is responsible as a result of an order in their divorce action) has been suspended.  The applicant claims he is in dire straights. [25] In the replying affidavit the applicant disclosed further assistance from Ms Oosthuizen, but to a very limited extent.  He also indicated demand letters in respect of unpaid accounts for levies and utilities and that the medical aid has since been cancelled. The respondents’ case [26] The NDPP most strenuously opposed the application, principally on the basis that it alleges that the applicant has failed to make sufficient disclosure of his financial position to cross the jurisdictional hurdles referred to earlier. [27] The NDPP also complained that the applicant had not fully explained how his expenses of September and October 2024 had been paid.  It made the point that the bank statement of Ms Oosthuizen’s savings account reflected deposits of R35 000.00 rather than payments in the amounts mentioned in par [22] above (i.e. monies going into as opposed to going out of her savings account). [28] The NDPP also argued that the disclosures of assets and liabilities to the curator were legally irrelevant as section 26(6) requires disclosures to be made to the court and not to any other person. Evaluation [29] I’ll start with the payment of expenses by Ms Oosthuizen during September and October from her savings account.   The applicant has explained in his replying affidavit that he had erroneously referred to the savings account as the source of the funds.  The source was, in fact, Ms Oosthuizen’s investment account and the applicant annexed a bank statement of that account which reflects the corresponding transfer of funds from that account to her savings account, which enabled the payment of expenses.  Supported by such corroboration, the court has no reason to doubt the explanation, even though it came by way of a replying affidavit. [30] Are there any undisclosed assts?  The NDPP says the court should not accept the applicant’s ipse dixit , but neither the NDPP nor the curator has given any indication at all, let alone produce any evidence, from which an inference of the existence of such assets can be inferred. [31] While bearing in mind that the applicant bears the onus (a fact which the NDPP stressed), such an onus has only to be discharged on a balance of probabilities.  It is generally improbable that a person would prejudice himself by the non-payment of essential living expenses to the extent that he would be threatened with electricity and water cut-offs and would lose his medical aid benefits, if he had access to sources of funds. [32] The case is also to be distinguished on the facts from that of NDPP v Elran , referred to earlier.  Mr Elran had alleged that he had lived off “loans and charity”, but had failed to provide any detail or disclosure thereof.  In the present matter, the applicant had provided such detail and disclosure. [33] In Elran’s case, the NDPP could rely on the fact that Mr Elran had been able to support himself and his family for a period of three years since the granting of the restraint order.  In the present matter, the application(s) were launched within 3 months of service of the order. [34] Mr Elran, which was a suspected drug-dealer and money-launderer, had estimated monthly expenses of R100 000.00 and he had failed to confirm his assets and liabilities on oath.  The combined effect hereof, when viewed over the period of three years, was such to cause Zondo J (as he then was) to remark in one of the minority judgments that “… it is difficult to resist the temptation to think that the source of such a person’s livelihood is illegitimate and probably illegal ”. [35] In contrast herewith, the applicant in thee present matter is a 73 year old pensioner (Ms Oosthuizen is also a pensioner) and the source of illegitimate income which feature in his criminal matter, namely corrupt payments by Bosasa, Mr Watson or Mr Aggrizzi and others, have long since dried up. [36] I therefore find that the NDPP’s opposition is not supported by facts, inferential or otherwise, and that the jurisdictional requirements for the relief set out in the order which follows, have been met. Amended relief: legal expenses [37] In the initial Notice of Motion and founding affidavit, the applicant has alluded to the fact that he might have need of funds for the payment of the legal expenses of his criminal trial.   At that stage he had still envisaged that his erstwhile employer might foot the bill. [38] In an amended Notice of Motion, delivered together with a supplementary founding affidavit, the applicant indicated that the National Commissioner of Correctional Service has, in compliance with the Solicitor-General’s Policy on State Legal Representation, 2021 declined to approve the provisions of legal representation for the applicant via the office of the State Attorney.  This was dated 30 March 2025. [39] The applicant claimed that it was envisaged that his upcoming trial would last 40 court days.  He further claimed that he had appointed “experienced” counsel and had “attended to signing a fee and mandate agreement” with his legal representative. [40] The applicant averred that his attorney’s and counsel’s fee have been quoted at R25 000.000 per day each.  When provision is made for 5 days’ preparation in addition to the trial itself, the applicant claims release of funds to him by the curator bonis of R2 250 000.00. [41] The NDPP’s opposition to this further relief is both substantial and procedural.  The substantive objections are that the applicant has not indicated that he has exhausted alternate means of funding his defence, such as appealing the refusal of legal assistance (to the Solicitor General) or applying for Legal Aid Assistance.  He therefore, on the papers as they stand, has not justified the actual need as contemplated in section 26(6). [42] Procedurally, the NDPP objected to the fact that no confirmation of the legal fees have been provided.  The quotation relied on was not annexed, the fee agreement and mandate were not annexed, nor was there any confirmation from the attorney or the counsel of the allegations made by the applicant.  These procedural deficits also impact on the assessment of the veracity and reasonableness of the claims. [43] I am of the view that these objections are valid and that, on the papers as they stand, the applicant has not made out a case for the amended relief claimed.  At best, the applicant is entitled to the R15 000.00 costs of the present application, as envisaged in his original founding affidavit and in section 26 itself. [44] As a last comment, I should add that the amount R40 455.75, as claimed by the applicant in respect of funds loaned to him by Ms Oosthuizen, is a liability in his estate and, although the loan was for funding of previously incurred living expenses, I find that section 26 envisages the release of funds to cover an applicant’s ongoing needs and not to pay historically incurred debt. Costs [45] Having regard to the circumstance of the case, in the exercise of this court’s discretion, I make no further order as to the costs of the application, other than that referred to in paragraph [43] above. Order [46] In the premises, the following orders are made: 1.       The second respondent is ordered to pay the following service providers of the applicant before or on 31 December 2025 and thereafter before or on the last day of each successive month: 1.1     R7 481.00 to Discovery Health Medical Scheme, member number 3[...], First Bank Corporate Account Service – Johannesburg, account number 0[...]. 1.2     R2 200.00 to Midstream Estate Levy, ABSA Bank, account number 4[...], reference: 0[...]. 1.3     R1 252.00 to City of Tshwane re retirement village rates and taxes, reference: 5[...]. 2.       Ordering the second respondent to pay the following service providers within 3 (three) days of receipt of the relevant statements from the applicant. 2.1     Ekurhuleni Municipality, rates and taxes and utilities, reference: 1[...]; 2.2     Midstream Electrical Suppliers (Pty) Ltd (“MES”), ABSA Bank, account number 4[...], reference: 0[...]; 2.3     Vodacom (Pty) Ltd, reference: K[...]. 3.       Ordering the second respondent to pay an amount of R4 530.00 to the applicant into his appointed bank account, to wit, Sharon Oosthuizen’s Capital Bank Savings Account, number 2[...], on or before the 1st of every month. 4.       Ordering the second respondent to pay an amount of R15 000.00 to the applicant into his appointed bank account to wit, Sharon Oosthuizen’s Capital Bank Savings Account, number 2[...], within 30 days from date of this order, in lieu of legal costs of this application. N DAVIS Judge of the High Court Gauteng Division, Pretoria Date of Hearing: 20 October 2025 Judgment delivered: 15 December 2025 APPEARANCES: For the Applicant:                                            Adv A J J du Plooy Attorney for the Applicant:                      A le Roux Attorneys, Johannesburg For the First Respondent:                                Adv S de Villiers Attorney for the First Respondent:                    The State Attorneys, Pretoria For the Second Respondent:                           Adv J Crouse Attorney for the Second Respondent:               Crouse Incorporated, Pretoria [1] 121 of 1998. [2] In case no 077715/2024. [3] CC 14/22 [4] 2012 (1) SACR 358 (CC). [5] At par [20]. [6] 2013 (1) SACR 429 (CC). sino noindex make_database footer start